Top 6 Significant CEQA
Cases in 2008 		March 2009
In This Issue
Important 2008 CEQA Lawsuits
NEW FEATURE! Yoga for Desk Jockeys
Who is Douglas Herring & Associates?
Greetings!
 
Last year was a busy one for California courts ruling on California Environmental Quality Act (CEQA) litigation cases!  The Supreme Court rendered three decisions (with four more pending), and the Appellate Courts published 13 decisions.  Knowing how busy you are, we've just briefly summarized the key findings of the top five cases we think you'll want to be aware of as you prepare or process future CEQA documents.  In the interest of brevity, we omit details and factual background of the cases.  If we receive enough requests, the next DHA alert will summarize additional cases decided last year.

New Feature!  Because environmental planning takes inordinate concentration on the minutiae of details, we're offering our readers and colleagues a tip we use:  "Yoga for Desk Jockeys."  It keeps us alert and our bodies stretched after being glued to our seats for hours on end.  We offer this idea as a gift to our readers so that you may also enjoy the feel-good body and mind rewards of yoga -- the same way we use them.  (Follow the link at left to jump right to it.)  And we especially look forward to hearing your results, too!

Sincerely,
 

Doug Herring, AICP
Important 2008 CEQA Lawsuits

Save Tara v. City of West Hollywood
This decision clarified what constitutes a "project" for purposes of CEQA.  Under most circumstances, a city or county may not enter into agreements assuming future compliance with CEQA review, as such agreements cede the agency's ability to exercise discretion over alternatives, including the no-project alternative, and potential mitigation measures.  The Court did not establish a general guideline as to when compliance-contingent agreements may or may not be made, but in the case of Save Tara, the City had, among other actions, deemed the project "approved" for federal housing grant applications, loaned funds to the developer based upon expected returns from the project, and had begun to clear residents from the project site.  (October 30, 2008) 45 Cal. 4th 116.

Citizens for Responsible and Open Government v. City of Grand Terrace
Developments whose density or height is inconsistent with the surrounding area may be considered to have potentially significant impacts as a result of a substantial change to a neighborhood's aesthetic appearance, even if the proposed project would not obstruct public views in the area.  In addition, compliance with adopted General Plan standards (in this case, for noise) does not trump the "fair argument" standard for significant impacts.  (March 13, 2008) 160 Cal. App. 4th 1323.

St. Vincent's School for Boys v. City of San Rafael
An EIR may be prepared for agency actions after the action has been initiated provided that the agency does not commit to the action and does not cede its ability to explore alternatives under CEQA.  In this case, the City of San Rafael prepared an EIR for a General Plan revision which removed approximately 1,100 acres from its sphere of influence that had been previously designated for development.  The suit argued that the City had prematurely enacted the revisions by halting a pending application for development and notifying the Marin County Local Agency Formation Commission (LAFCO) that the property was to be removed from its sphere of influence.  Because the City had not committed to a course of action, excluding the St. Vincent's land from future annexation in the draft General Plan update did not constitute a "project" subject to CEQA and, therefore, the City did not act improperly.  The Court noted that in revising a general plan, comparison of the effects of the revised plan against the existing general plan are not required; CEQA only requires comparison of the revised plan against existing conditions.  The Court also held in this case that costs for assembling documents for the administrative record may be recovered even when a petitioner voluntarily prepares the administrative record.  (April 15, 2008) 161 Cal. App. 4th 989.

Gray v. County of Madera
In Gray v. County of Madera the 4th District Court of Appeals issued several significant rulings pertaining to the adequacy of an EIR, requiring a more lengthy summary of this case.  The Court held that mitigation measures must establish details and standards to be met, must be feasible and relevant, and must be enforceable within a defined timeline.  In this case, the mitigation requirement that the developer pay "an equitable share" of future highway construction was not sufficient to meet CEQA standards.  However, the Court affirmed that mitigation measures may defer specific implementation details, provided a measurable performance standard is established.  Other key findings:

  • Cumulative impact analysis must identify planning documents used and must make those documents available to the public.  Only "probable future projects," defined as "any future project where the applicant has devoted significant time and financial resources to prepare for any regulatory review," must be considered in the analysis of cumulative impacts.
  • Mitigation for lost water supply was found inadequate in several respects.  None of the proposed measures would provide residents with the ability to use water in substantially the same manner they were accustomed to in the absence of the project.  Further, the EIR failed to evaluate the secondary impacts of the mitigation measures, such as disposal of bottles from bottled water and impacts from construction of a new water system.  Finally, the EIR improperly deferred mitigation to a later date without establishing an effective performance standard.
  • The Court ruled that public agencies may, but are not required, to respond to comments submitted after the public comment period has ended.  However, responses to late comments may bear upon an agency's demonstration that there is substantial evidence to support its decision to certify an EIR as adequate.
  • The County found noise impacts to be less than significant because a 2.1-dBA increase fell under the 3- to 5-dBA threshold "commonly required to identify noise impacts."  Although these noise levels in isolation might be insignificant, the Court found that the County had failed to consider potentially significant cumulative impacts because background noise levels already exceeded the general plan noise standards. 
  • Health risk assessments from diesel exhaust need not be performed for distant, off-site locations under the reasoning that off-site emissions would lower the average exposure, thus underestimating on-site emissions, and would not yield any more impact information than an on-site assessment.
  • An EIR's scientific findings do not necessarily need to be based on a resource agency's established study protocols (in this case, CDFG and USFWS survey protocols for California tiger salamander), a specific methodology, or performance of "countless studies," but must be backed by substantial evidence.
  • The court upheld identified mitigation for light and glare impacts because it established a specific performance standard, even though it lacked details in how the performance standard would be met.   (October 24, 2008) 167 Cal. App. 4th 1099.

Environmental Protection and Information Center v. California Department of Forestry
Agencies are not required to respond to duplicate comments or "non-project specific secondary material" submitted as part of a public comment; "when the material not considered was, on its face, demonstrably repetitive of material already considered, or so patently irrelevant that no reasonable person could suppose the failure to consider the material was prejudicial...then such omissions do not subvert the purpose of the public comment provisions..."  (July 17, 2008) 44 Cal. 4th 459.

Sierra Club v. City of Orange
A city is not required to establish the exact annexation boundaries within the EIR provided the entire project area is studied.  The use of baseline conditions established within a previously prepared document, in this case a runoff management plan, is appropriate when the document is available to the public and is added as an appendix to the EIR.  The Court rejected the argument that traffic impact analysis must be done utilizing the same methodologies as the County's general plan; the court found that as long as the methodologies used yield reliable and accurate findings, CEQA requirements are satisfied.

A "reasonable range" of alternatives may include alternatives that are environmentally superior in only in some impact areas; CEQA requires that alternatives avoid only some of the significant impacts while meeting most of the objectives of the proposed project.  Public comments to a Notice of Preparation, as well as non-specific or general objections to a proposed project, are not sufficient to exhaust administrative remedies in challenging an EIR.  (April 30, 2008) 163 Cal. App. 4th 523, 537.


Sources:  Bingham McCutchen LLP (19th Annual Land Use and Development Breakfast Briefing, January 21, 2009); CEQA Update 2009 (2009 AEP Conference, March 17, 2009); Abbott & Kinderman (CEQA:  The 2008 Year in Review).

Neck Stretch Pose -web Yoga for Desk Jockeys 

by Barbara Kaplan Herring
Healing Neck Stretch -  Sit tall in your chair, relax your shoulders, and open your chest.  Place your head in alignment with your spine.  Look forward, tilt the right ear to the right shoulder.  If you wish to deepen the experience, bring the right palm to the left ear and let the left shoulder drop away.  Press your left ear up into the palm as you gently press the palm down on the ear, creating an isometric action.  If the neck feels okay, keep the tilt but look down towards your legs for a few breaths and then up towards the ceiling.  To come out, look forward again and create a little resistance with your hand on the ear as you return your head to vertical.  Do both sides as you breathe fully.  You might complete the experience with a few shoulder rolls in each direction.  May you be healthy and well.

Barbara Kaplan Herring runs the Harmony Yoga Studio in El Cerrito, California.  She leads yoga trips to exotic locations such as Nepal, Mexico, Burma, Peru, and Hawaii.  Learn more at Harmony Yoga Studio.
Who Is Douglas Herring & Associates?
Douglas Herring & Associates (DHA) works with public agencies, developers, and other businesses in California to expertly obtain the environmental and planning approvals needed to move projects from the conceptual stage to physical, benefit-generating reality in an efficient and cost-effective manner.  Since 1997, DHA has helped dozens of California cities and counties and scores of other businesses and organizations save money while obtaining high-quality planning and environmental analysis services necessary to get their projects expeditiously approved and built.  Learn more on our website:  Douglas Herring & Associates.