“I fought the law and the law won” – The Crickets

In an opinion filed July 19, and later ordered published on August 16, 2023, the Second District Court of Appeal (Div. 6) reversed the trial court’s grant of a preliminary injunction in a CEQA action enjoining the Santa Barbara County Road Commissioner from enforcing public laws by removing unpermitted encroachments from a public right-of-way.  Christopher Anderson, et al. v. County of Santa Barbara, et al. (2023) ___ Cal.App.5th ___.  The public officer’s law enforcement actions were held to be exempt from CEQA; to have independent utility apart from any alleged larger, “piecemealed” project evading CEQA review; and not to be subject to the “unusual circumstances” exception to applicable categorical exemptions.  While the Court was careful to fully analyze all of petitioners’ CEQA arguments, its opinion also offered numerous other reasons why the trial court erred and exceeded its lawful authority under applicable legal principles in issuing the preliminary injunction.

Factual and Procedural Background

In criminal violation of state statutory and local ordinance provisions, some adjacent landowners placed unpermitted encroachments – including landscaping, trees, bushes, boulders and rocks, and “No Parking” signage – in the public right-of-way along a portion of East Mountain Drive in Montecito, which is part of unincorporated Santa Barbara County.  The encroachments blocked what would otherwise be available public parking spaces along that road, which leads to the trailhead of a popular hiking trail in Hot Springs Canyon; they were placed there by the residents to discourage or prevent members of the public (including trail users) from parking in front of their properties.

In addition to their unpermitted placement constituting a misdemeanor criminal offense under the law, the private encroachments created fire safety risks and public safety hazards for motorists, pedestrians, bicyclists, and equestrians by effectively narrowing swaths of the two-lane public road to one lane.

These problems were apparently exacerbated by increased trailhead use during the pandemic and the County’s removal in Spring 2021 of about 50 parking spaces on another road near the trailhead to accommodate fire risk and emergency access concerns raised by the fire department.  When the encroachments and related parking problems were reported to its Public Works Department (DPW), the County began efforts to restore public parking on East Mountain Drive.  Toward that end, the County’s Board appropriated $100,000 for Hot Springs Trailhead access improvement studies and implementation, the DPW identified problems and needed actions, and County’s Transportation Division sent notices to three offending property owners to remove unpermitted encroachments within 60 days.  DPW filed a Notice of Exemption (NOE) for the “Montecito Right-of-Way Restoration” project, stating it was categorically exempt under CEQA Guidelines § 15301(c) as involving restoration of the existing roadway and minor alteration of existing public facilities to maintain safe travel conditions for vehicles, bicycles, pedestrians and parking.

Perhaps fearing they would be next (or perhaps as part of an orchestrated effort to avoid an “unclean hands” defense), neighbors of the owners who were ordered to remove the illegal encroachments then filed a writ petition challenging the County’s NOE under CEQA.  They sought and obtained from the trial court a preliminary injunction prohibiting removal of encroachments within a half-mile of the Hot Springs Canyon trailhead.  The trial court, which viewed the County’s removal orders as a “piecemealed” segment of an unstudied larger project to create parking for trail users (which would arguably have related potentially significant environmental impacts), rejected County’s arguments that removal of encroachments was not a “project,” as well as its CEQA exemption arguments, including under the exemption for “enforcement of a law, general rule, standard, or objective, administered or adopted by the regulatory agency” (CEQA Guidelines, § 15321); the trial court concluded the balance of relative harms favored the petitioners (respondents on appeal), who would likely “forever” lose their “mature landscaping” once removed, while giving little weight to County’s public safety interests because it “had tolerated the encroachments for many years.”

During pendency of County’s appeal of the preliminary injunction, the trial court also ordered a peremptory writ to issue, although this did not constitute the final judgment in the action as it left unresolved County’s cross-complaint for public nuisance and trespass, which was also filed during the preliminary injunction appeal.  The Court of Appeal determined the preliminary injunction appeal was not moot because it could still issue effective relief prior to entry of the final judgment, and, in any event, also elected to exercise its discretion to hear the appeal because the “case involves issues of public interest relating to local governments’ enforcement of encroachment laws and their obligations under CEQA.”

The Court of Appeal’s Opinion

In reversing the trial court’s grant of a preliminary injunction as erroneous in a number of respects, the Court of Appeal’s opinion set forth numerous legal principles, rules and rationales leading to its holding, including the following:

• On review of a preliminary injunction, numerous standards of appellate review may be implicated.  The trial court’s evaluation and weighing of the likelihood of merits success and balancing of harms is reviewed for abuse of discretion; its application of legal principles is reviewed de novo; and its findings of fact are reviewed for substantial evidence support.  While its discretion to grant or deny a preliminary injunction is broad, a trial court has no discretion to act capriciously or to “transgress[ ] the confines of the applicable principles of law.”
• The trial court’s preliminary injunction order contravened Code of Civil Procedure § 526(b)(4)’s directive that:  “An injunction cannot be granted … to prevent the execution of a public statute by officers of the law for the public benefit.”  While this statute admits of exceptions, including “where the public official’s action exceeds his or her authority” (Alfaro v. Terhune (2002) 98 Cal.App.4th 492, 501), the Court concluded that such was not the case with the County Road Commissioner’s encroachment removal orders here.
• Despite its broad reach, “CEQA is not a ‘limitation or restriction on the power or authority of any public agency in the enforcement or administration of any provision of law which it is specifically permitted or required to enforce or administer . . . .’”  (Quoting Pub. Resources Code, § 21174.)
• Subject to possible application of the unusual circumstances exception (CEQA Guidelines, § 15300.2(c)), the CEQA Guidelines contain relevant categorical exemptions for:  (1) projects to maintain or repair existing facilities, including highways and streets, that “involve negligible or no expansion of . . . use” (§ 15301(c)); (2) projects for “minor public or private alterations in the condition of land . . .” (§ 15304); and (3) actions by a regulatory agency involving “enforcement of a law, general rule, standard or objective administered or adopted by the regulatory agency.”  (§ 15321.)
• “The Vehicle Code provides that public parking is allowed on any street or road unless the relevant local governing body adopts an ordinance prohibiting or restricting it.”  (Citing Veh. Code, §§ 21(a), 22507(a).)  Because the County has adopted no such ordinance with respect to East Mountain Drive, public parking is by law allowed there.
• “[B]oth state law and county ordinances prohibit encroachments on the right-of-way of any public road”; State law “authorizes the County Road Commissioner to remove, after appropriate notice, any encroachment placed without a permit in any public right-of-way.  (Sts. & Hy. Code, §§ 1480.5, 1481)”; property owners may not under state law maintain unpermitted encroachments (id., § 1460); and the County has adopted an ordinance requiring a permit to install or maintain right-of-way encroachments and making it a misdemeanor to do so without the required permit.
• Per the Court:  “Compliance with these legal standards is not discretionary for property owners” and “[t]he trial court may not allow CEQA to trump the criminal law.”
• The trial court erred in assessing the likelihood of success on the merits “because CEQA does not limit [county’s] authority to enforce encroachment laws and because there is no substantial evidence of a [piecemealed] larger project.”  Rather, “[t]he current project [to restore the public right-of-way by removing illegal encroachments] is properly considered a stand-alone project because it has independent utility.”
• Further, per the Court, “[c]onsidered in its proper context as a stand-alone project, the right-of-way restoration project is categorically exempt from CEQA because it involves the maintenance or repair of an existing roadway and the enforcement of statutes and ordinances prohibiting unpermitted encroachments in the public right-of-way.  In addition, there is no substantial evidence that the project presents unusual circumstances.”
• Viewed from a CEQA analysis perspective, much of the trial court’s error stemmed from its misapplication of CEQA piecemealing law and consequent misapprehension of the limited scope and purpose of the County’s right-of-way restoration project for CEQA purposes.  Per the Court of Appeal:  “The current project as defined by the Road Commissioner has independent utility, regardless of whether notices are sent to other property owners in the future or other, as yet unannounced actions are taken to increase access to or use of the Hot Springs trail.  Removing encroachments brings the properties into compliance with the Streets and Highways Code and county ordinances and engineering standards by restoring the “clear zone” in front of these properties.  It also recovers space for public parking.  These results occur regardless of whether other homeowners are later notified to remove encroachments or other steps are taken to increase hikers’ access to Hot Springs trail.”
• The Court further held that Respondents could not defeat the project’s categorical exemption from CEQA because they failed to carry their burden of establishing by substantial evidence either that the project presented an unusual circumstance or that it will have a significant environmental effect.  The trial court erred in concluding that the project’s location adjacent to Hot Springs Canyon was an unusual circumstance defeating the exemptions.  Rather, “[l]ike many roads in Montecito, East Mountain Road is an existing, developed road, portions of which are located near an Environmentally Sensitive Habitat (ESH) area overlay zone” and the public may park on all county roads in Montecito, including those adjacent to ESH area overlay zones unless otherwise posted.  Per the Court:  “East Mountain Drive’s proximity to the overlay zone is not unique in Montecito, nor is it evidence of an unusual circumstance” and the County’s determinations that the project involved only existing roadway restoration for safety purposes constituted substantial evidence supporting its determination of no unusual circumstances, such that the exception did not apply.
• The trial court also “abused its discretion when it found County had no legitimate interest in enforcing the laws against encroachments and that respondents would be irreparably harmed by complying with those laws.”  The record included substantial evidence that the encroachments presented both fire safety and public safety risks, and “[e]ven without that evidence the encroachment statutes and ordinances themselves represent a legislative determination that the public interest is served by prohibiting and authorizing the removal of unpermitted encroachments in the public right-of-way.”  On the other side of the equation, the record contained no substantial evidence of irreparable harm to respondents from encroachment removal; rather, they could presumably remove the plants and objects they installed onto their own private property, and in any event they were obligated to obey the law and cannot claim harm or suffer grave or irreparable harm by being prohibited from violating the law.  (Citing Jamison v. Department of Transportation (2016) 4 Cal.App.5th 356, 365-366; People v. Uber Technologies, Inc. (2020) 56 Cal.App.5th 266, 306; People ex rel. Reisig v. Acuna (2010) 182 Cal.App.4th 866, 882.)

Conclusion and Implications

This case illustrates that, as expansive as CEQA has become, a claimed failure to comply with it is still, in the Court’s own words, “not a defense to the commission of a crime.”  Entirely apart from the Court’s CEQA analysis, well-established principles of public nuisance law and limitations on injunctive relief weighed heavily on the County’s side in this case; indeed, given those bodies of non-CEQA law, it is somewhat difficult to understand how the trial court got so far off track in its failure to properly apply the relevant legal principles.

Further, and notwithstanding the Court’s conservative, thorough, and methodical analysis and rejection of the petitioners/respondents’ CEQA arguments, my own view is that a strong case can be made that the encroachment removal orders were simply not a “project” subject to CEQA at all.  Any alleged “discretion” possessed by a public officer specifically charged with enforcing laws enacted for public safety purposes regarding whether or how to enforce those laws is simply not the kind of “discretion” involved in the approval of a “project” that is needed to trigger CEQA, i.e., discretion that is provided by the legal controls over a proposed project authorizing a lead agency to deny it or condition it for the purpose of mitigating environmental concerns.  Even though, as a practical matter, the enforcement of laws prohibiting unpermitted encroachments in public right-of-ways might be withheld or delayed based on an agency’s limited resources or a lack of complaints bringing violations to its attention, the statutory and local laws enforced by the Road Commissioner here were absolute in nature and undoubtedly did not provide for enforcement exceptions or conditions based on environmental considerations.