Supreme Court of California Ruling Elevates Responsible Agency Role Under CEQA - City's EIR Erred by Failing to Fully Disclose and Assess Reasonable Range of Alternatives After Responsible Agency Staff Concluded Project Components Were Legally Infeasible

by Holland & Knight LLP
Contact

Holland & Knight LLP

HIGHLIGHTS:

  • In Banning Ranch Conservancy v. City of Newport Beach, et al., the Supreme Court of California concluded that the City of Newport Beach (City) failed to sufficiently disclose and analyze impacts as well as a reasonable range of alternatives to a mixed-use project given a California Coastal Commission staff decision that approximately 80 percent of the site contained "environmentally sensitive habitat areas" (ESHA) under the Coastal Act, which prohibits development in such areas.
  • The City disagreed with the Coastal Commission staff conclusion and the full Coastal Commission would have been required to decide the ESHA issue (as a subsequent responsible agency) under the Coastal Act, so the Environmental Impact Report (EIR) did not include a map showing ESHA boundaries or analyze alternatives that considered the legal infeasibility of development within ESHA.
  • The Court rejected the City's contention that the substantial evidence standard should be applied to the City's rejection of the Coastal Commission staff's ESHA conclusion, and applied the "de novo" standard of review as to whether the lead agency appropriately integrated responsible agency input into the Draft and Final EIR. As a result, the Court gave no deference to the lead agency's determination that ESHA are not present on the project site.
  • The case reaffirms the need for lead agencies to fully disclose and consider the jurisdictional claims and regulatory opinions of responsible agencies under the California Environmental Quality Act (CEQA).

In Banning Ranch Conservancy v. City of Newport Beach, et al., the Supreme Court of California held that lead agencies need to expressly disclose and consider the jurisdictional claims and regulatory opinions of responsible agencies under the California Environmental Quality Act (CEQA). In its opinion, issued on March 30, 2017, the Court found that the City of Newport Beach (City) failed to analyze impacts and mitigation for environmentally sensitive habitat areas (ESHA) identified by the California Coastal Commission, even though the City disagreed with the Coastal Commission that the project site contained ESHA.The Court's decision importantly conveys that if a lead agency disagrees with the findings of a responsible agency, the lead agency must nevertheless expressly disclose its disagreement – and to the extent that the disagreement affects the significance of an impact, the lead agency needs to support the explanation of its disagreement with substantial evidence. Further, even if the lead agency does this, it is unclear whether the lead agency would be afforded deference as to its conclusion to disagree with the responsible agency.

Case Background

The City prepared an Environmental Impact Report (EIR) for the Banning Ranch project, which is a proposed mixed-use development that would include up to 1,750 residential units in addition to retail and hotel uses. The project is located in a coastal zone under the California Coastal Act, which provides protections of ESHA – including a prohibition on non-habitat-dependent uses in such areas. Although the official ESHA determination by the Coastal Commission would take place after the City's consideration of the EIR (during the Coastal Commission's permitting process), an abundance of "credible evidence" in the record showed that the Coastal Commission (through consent orders applying to portions of the project site, comment letters and other communications) identified approximately 80 percent of the project site contained ESHA. In the final EIR, the City acknowledged the presence of ESHA, but did not disclose a map of the ESHA identified by the Coastal Commission, and did not consider in its impacts or alternatives analysis the legal infeasibility of developing on ESHA under the Coastal Act if the Commission itself ultimately agreed with the ESHA determination.

The Court's Decision

In another dilution of the traditional "substantial evidence" standard applied to the factual conclusions presented by lead agencies in EIRs, the Court identified this ESHA dispute as a procedural issue warranting a "de novo" standard of review. It is unclear, however, whether the Court would have afforded deference under a substantial evidence standard of review to the City's conclusion had the City explicitly discussed and substantiated with substantial evidence its disagreement with the Coastal Commission.

However, this case could be read as being consistent with California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, in which the lead agency, the City of Rancho Cordova, was given deference as to its decision to disagree with responsible agencies. In that case, responsible state and federal agencies with jurisdiction over vernal pools and seasonal wetlands affected by the project unanimously disagreed with the lead agency's conclusion that the mitigation measures reduced the project's impacts to these resources to a less than significant level. However, in that case, the lead agency substantiated its disagreement and the court upheld Rancho Cordova's decision to disagree with these responsible agencies, finding that the petitioners did not carry their burden to show that there was no substantial evidence supporting Rancho Cordova's finding that the mitigation measures reduced the impacts to less than significant levels.

Had the City in Banning Ranch Conservancy explicitly disclosed its disagreement with the Coastal Commission and substantiated its conclusion that no ESHA are present on the project site with substantial evidence, it is possible that the Court would have refrained from using its own judgment to determine that ESHA impacts should have been analyzed.

Conclusion

This case affirms the need for a lead agency to expressly disclose any disagreement with the legal conclusions of a responsible agency, to support the lead agency's disagreement with substantial evidence and to disclose the consequences to the project (e.g., in requiring more mitigation or in requiring avoidance or reconfiguration of some project site area or feature). These steps will be key if the responsible agency's staff conclusion is ultimately upheld by the responsible agency's decision-maker after the lead agency completes the CEQA process. As a practical matter, in an EIR context such a disagreement can generally be well-framed as an alternative to more easily allow for a thorough discussion of the implications of the consequences of the responsible agency's opinions on multiple impact topics.

Unlike the Coastal Commission, other responsible agencies generally do not have the authority to totally ban development, so in most circumstances the lead agency can continue to satisfy its responsible agency consultation duties in the ordinary course (e.g., through the scoping process and in responding to comments on the lead agency draft CEQA document). Where a responsible agency's conclusion renders all or a portion of the project legally infeasible, as a practical matter this conclusion at minimum supports the need for full disclosure of the responsible agency's opinion and consideration of a project alternative that is legally feasible.

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.

© Holland & Knight LLP | Attorney Advertising

Written by:

Holland & Knight LLP
Contact
more
less

Holland & Knight LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.