Real Estate and Land Use - August 2014

by Manatt, Phelps & Phillips, LLP

In This Issue:

  • Chula Vista Citizens for Jobs and Fair Competition, et al. v. Donna Norris, et al.
  • Citizens For A Sustainable Treasure Island v. City and County of San Francisco 227 Cal. App. 4th 1036, 1047 (2014)
  • People of the State of California ex rel. Imperial County Air Pollution Control District v. U.S. Dept. of the Interior

Chula Vista Citizens for Jobs and Fair Competition, et al. v. Donna Norris, et al.

Author: Kristina Lawson

Why it matters: With land use issues and development projects increasingly the subject of local ballot initiatives, it is imperative to understand the procedural requirements for initiatives, including who may properly serve as an official proponent of a local measure.

Facts: Two activist associations sought to place an initiative on the ballot in the City of Chula Vista. As described in the initiative, the purpose of the proposed measure was to mandate that the City and the City’s Redevelopment Agency not fund or contract for public works projects where there was a requirement to use only union employees. Because the City of Chula Vista (a charter city) requires that initiative proponents be electors, two association members agreed to serve as proponents in place of the associations. Among other requirements, the City mandated that the proponents’ names appear on the face of the circulated petitions for the initiative, and in several other public documents. After the City Clerk rejected the submission of circulated petitions because the petitions failed to include the proponents’ signatures on the notice accompanying the petitions, the associations filed a lawsuit alleging that the elector and petition proponent disclosure requirements violate the First Amendment.

Decision: After resolving relevant jurisdiction issues, the Ninth Circuit Court of Appeals tackled the question of whether the elector requirement implicates the First Amendment. The associations – desirous of “official proponent” status — alleged that the elector requirement is an unconstitutional condition on their right to associate for purposes of political expression and that the requirement abridges the rights of speech, association, and petition. The Court determined the associations’ argument amounted to a claim that serving as an official proponent is a form of speech protected by the First Amendment and that by seeking the legal authority of official proponents, the associations were seeking the legislative power of setting the initiative process in motion. The Court rejected the associations’ challenge to the elector requirement, finding that First Amendment freedom of speech does not require the people to delegate legislative power to associations.

The Court also addressed the question of whether the requirement that individual proponents be identified on the initiative petition is Constitutional. Rejecting the State of California’s arguments that such disclosure was necessary to preserve the integrity of the electoral process and inform the electors of an official proponent’s identity, the Court found that the petition-proponent disclosure requirement was unconstitutional. As a result, sections 9202 and 9207 of the California Elections Code were declared invalid insofar as they require official initiative proponents to identify themselves on the face of the initiative petition.

Practice Pointers: Some suggested responses to this decision are the following:

  • Individual proponents have a right to be anonymous when they are acting in an advocacy role to persuade voters to sign initiative petitions. When you are approached by a signature gatherer in the future, the individual proponents’ names will no longer be on the petitions.
  • If a voter or interested individual is seeking information about who is financially backing a particular initiative, a review of campaign finance reports, which are available from County or City Clerks, will be important.
  • Strict compliance with the Elections Code procedural requirements is imperative for initiative proponents, and this case highlights how contentious compliance with the requirements can be.

Citizens For A Sustainable Treasure Island v. City and County of San Francisco
227 Cal. App. 4th 1036, 1047 (2014)

Author: David McGrath

Why it matters: The EIR prepared for the long-term renovation and development of Treasure Island in the San Francisco Bay was upheld despite the lack of detail regarding future uses of the site. The court’s decision provides guidance for long-term master-planned projects where flexibility is needed to respond to changing conditions and unforeseen events.

Facts: Citizens for a Sustainable Treasure Island (CSTI) argued that the City and County of San Francisco (City) failed to certify a legally adequate EIR for the Treasure Island/Yerba Buena Island Project (Project) in violation of CEQA. The Project is a comprehensive plan to redevelop the former naval station in the San Francisco Bay. The Project includes up to 8,000 homes, up to 240,000 square feet of new commercial, retail and office space, 500 hotel rooms, public utilities, a ferry terminal, and 300 acres of parks, playgrounds and open space, and is scheduled to take 15 to 20 years to complete. The existing site is characterized by aging infrastructure, environmental contamination from former naval operations, and deteriorated and vacant buildings. In July 2011, after more than a decade of planning, study and community input, the City’s Board of Supervisors approved the Project by a vote of 11-0, amending the City’s general plan, plan code maps and text, and approving policies and standards for the Project. CSTI filed for a petition of writ of mandate challenging the City’s decision to certify the EIR; the trial court denied the petition in its entirety and CSTI appealed.

Decision: The Court of Appeal affirmed the trial court’s decision and dismissed each of CSTI’s arguments regarding the sufficiency of the EIR. The Court began by finding that the issues raised on appeal were properly reviewed under the substantial evidence standard because they involved the sufficiency of the information provided to the public and to the decision makers. CEQA requires an EIR to demonstrate a good faith effort at full disclosure; it does not mandate perfection, nor does it require an analysis to be exhaustive. Thus, the absence of information in an EIR will normally rise to a failure to proceed in the manner required by law only if the analysis in the EIR is clearly inadequate or unsupported.

Program versus Project EIR. CSTI’s principal argument was that the City should have prepared a program EIR, not a project-level EIR, given that the EIR constituted program-level CEQA analysis and anticipated later environmental review on specific projects.1

The Court found that CSTI’s argument improperly focused on the EIR’s title rather than its substance; the fact that an EIR is labeled a project rather than a program EIR matters little for purposes of its sufficiency as an information document. The level of specificity of an EIR is determined by the nature of the project and the rule of reason, rather than any semantic label accorded to the EIR. The Court found that the EIR analyzed the environmental impacts of the Project with a degree of specificity consistent with the underlying activity being approved through the EIR and contained all of the required elements of an EIR found in the CEQA Guidelines. The Court did not detect any attempt to circumvent supplemental review, nor did the project EIR designation create any shortcut around the environmental review process as it applies to future site-specific approvals. The EIR provided the decision makers with sufficient analysis to intelligently consider the environmental consequences of the Project.

Adequate Project Description. CSTI claimed that the project description was inadequate, arguing that the Project — a 20-year, long-range development plan — was nothing more than a conceptual land use map. The Court found that the EIR made an extensive effort to provide meaningful information about the Project, while providing for the flexibility needed to respond to changing conditions and unforeseen events that could possibly impact the Project's final design. The creation of a special use district (SUD) and design for development (D4D) document provided concrete information about planning/design specifications that CSTI claimed were lacking. The Court acknowledged that many Project features would be subject to future revision and quite likely supplemental environmental review before implementation of the final design. However, the EIR was not faulted for not providing details that simply did not exist. Viewed as an informational document, the EIR’s Project Description provided sufficient information about the Project to allow the public and reviewing agencies to evaluate and review its environmental impacts, and also described the required main features of the Project.

Analysis of Hazardous Substances. With regard to the remediation of hazardous materials, CSTI argued that the EIR did not contain adequate discussion of the presence and remediation of hazardous substances; again, the Court disagreed. The EIR featured exhaustive information on the presence of hazardous materials and the ongoing cleanup efforts by the Navy, while also providing the standards, techniques, and oversight to be used in the event another party assumed responsibility for future remediation.

New Information. CSTI argued that new information added to the EIR required the City to recirculate the draft EIR. During the comment period, the Coast Guard commented on future building designs and potential vessel traffic service concerns. The City met with the Coast Guard, conducted additional technical studies to determine potential impacts, and created a binding consultation process between the Coast Guard and building developers to address potential future impacts. This did not require recirculation.

Historic Preservation. The Court dismissed CSTI’s claims relating to the preservation of two historic buildings because the EIR included binding design standards that would apply to future architectural design proposals. These required the historic resources be rehabilitated in accordance with the Secretary of the Interior’s Standards for the Rehabilitation and Guidelines for Rehabilitating Historic Buildings.

Tidelands. Lastly, CSTI argued that the Project failed to analyze potential impacts of the Project on land subject to the Tidelands Trust. This argument failed because the EIR explicitly required conformance with the legal requirements of the Trust and noted what the use restrictions would be for the Tidelands.

Practice Pointers:

  • Courts analyze the substance of an EIR, not the semantic label applied to the EIR.
  • Not all details of a final project are required—an EIR will likely be upheld if it makes an extensive effort to provide meaningful information about the main features of a project, but also provides flexibility needed to respond to changing conditions and unforeseen events that could possibly impact the project’s final design.
  • Ensure EIRs articulate when future environmental review processes may be necessary for a project, including the applicable standards and regulatory oversight that will be used.

People of the State of California ex rel. Imperial County Air Pollution Control District v. U.S. Dept. of the Interior

Author: Bryan LeRoy

Why it matters: In a decision involving an Environmental Impact Statement (EIS) prepared to analyze the impact of Colorado River water transfers on the Salton Sea, the Court upheld the determination not to file a supplemental EIS to address late changes to the project and also concluded that consideration of just one alternative (the “no action” alternative) was acceptable given that the water transfer agreement was “hard fought” and discussing hypothetical alternatives would be unhelpful. The Court also reinforced the rule that a court should not “fly speck” an EIS for inconsequential technical deficiencies.

Facts: Several water districts negotiated agreements to reduce the use of Colorado River water and to authorize inter-district transfers of conserved Imperial Irrigation District water to urban areas. Before ratifying the agreements in 2003, the U.S. Department of the Interior (DOI) prepared an EIS under the National Environmental Policy Act (NEPA). After the Final EIS was filed, but before the agreements were approved, DOI prepared an environmental evaluation of several last-minute changes to the master implementation agreement and concluded that a supplemental EIS was not necessary. Plaintiffs Imperial County and the Imperial County Air Pollution Control District brought an action under NEPA and the Clean Air Act challenging the EIS on several grounds, including the failure to supplement the EIS to address the amendments and the limited consideration of alternatives.

Decision: After concluding that the plaintiffs had standing to sue, the Ninth Circuit Court of Appeal upheld the EIS. Most important among those plaintiff’s challenges were that: (1) the EIS did not properly incorporate other environmental review documents; (2) the EIS impermissibly tiered to non-NEPA documents; (3) the EIS improperly segmented the subject water agreements from other water transfer agreements; (4) the EIS failed to analyze alternatives other than the no-action alternative; and (5) DOI failed to complete a supplemental EIS for amendments to the master implementation plan.

Tiering: With regard to the incorporation of and tiering to other environmental documentation, the court held that despite a scrivener’s error, the EIS did not tier to any of the external documents, but merely incorporated them by reference. Importantly, the court reinforced the rule that it will not “fly speck” an EIS for inconsequential, technical deficiencies.

Segmentation: Rejecting the segmentation argument, the court easily found that the water agreements had independent utility because they could take place with or without the other water transfer agreements that were not addressed in the EIS.

Supplement: As to DOI’s failure to prepare a supplemental EIS, the court recognized that a new alternative does not require a supplemental EIS if it falls within the range of alternatives analyzed in the EIS. The changes to the master implementation plan only involved changes to the mitigation mechanism. Therefore, since the changes were qualitatively considered through a no-mitigation alternative and the changes reduced the overall adverse impact, no supplemental document was required.

Alternatives: Finally, perhaps the most significant holding by the court was its conclusion that the EIS did not need to review any alternatives other than the proposed action and the no-action alternative. The court focused on the fact that the proposed action was a hard-fought negotiated agreement. “Discussing a hypothetical alternative that no one had agreed to (or would likely agree to) would have been unhelpful.”

Practice Pointers:

  • If changes are made to the proposed action after the Final EIS is submitted, the agency should prepare a short analysis showing that impacts resulting from the changes would fall within the range of alternatives considered in the EIS.
  • If the project involves an extensively negotiated agreement, the range of reasonable alternatives may be limited to the proposed action and the no-action alternative. Hypothetical alternatives proposed by project proponents may be considered unhelpful in this context.

1. As the opinion notes, a “project EIR” is prepared for a specific development project, and “should focus primarily on the changes in the environment that would result from the development project [and] examine all phases of the project including planning, construction, and operation.” In contrast, a “program EIR” can be prepared on a series of related actions that can be characterized as one large project, such as a planning document, but may not examine the potential site-specific impacts of the many individual projects that may be proposed in the future consistent with the plan.


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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