Five Important CEQA Lawsuits in 2011          
May 2012
In This Issue
Impacts of the Environment on a Project Not Covered Under CEQA?
Additional Legal Notes
Who is Douglas Herring & Associates?


It has been a busy spring, so we're getting this to you later than we intended. However, the 2011 court rulings we discuss in this issue will continue to reverberate over time and affect land use development decisions and practices in California, so this is still timely information. We summarize five court decisions in lawsuits challenging California Environmental Quality Act (CEQA) documents or procedures that, among the many 2011 rulings, we think are particularly relevant to the business conducted by our clients. We focus on the key provisions, not all of the issues addressed in the decisions. We hope you find this issue of our periodic eAlerts, intended to help keep our clients and colleagues informed on the latest land use, planning, and CEQA developments, a helpful one. Be sure to let us know if you have a suggestion for a future issue. We welcome your feedback!   



Doug Herring, AICP

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Photography by Doug Herring

Five Important CEQA Cases in 2011      

Cedar Fair, L.P. v. City of Santa Clara
(2011) 194 Cal.App.4th 1150

The plaintiff in this case asserted that the City of Santa Clara's detailed "term sheet" agreement with the San Francisco 49ers for development of a new football stadium constituted a project and required review under CEQA. Citing the precedent established in the Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 case (see our March 2009 eAlert), the Court ruled that the term sheet did not commit the City to an action that would preclude consideration of other alternatives or mitigation measures, and it was therefore not a "project" under CEQA. Download the full decision here:
Cedar Fair.

Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552

Adding to several 2010 rulings addressing "baseline" conditions for environmental review, this was another case clarifying what constitutes an acceptable baseline. The plaintiffs challenged the City's baseline for the traffic analysis presented in its EIR for a hospital expansion, saying it violated the standard set in Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351 (see our February 2011 eAlert).

The Draft EIR published in January 2009 evaluated existing traffic conditions based on 2007 traffic counts; a "background" scenario of existing plus projected growth plus approved projects; project conditions; and future cumulative conditions. The plaintiffs argued that the City improperly used a hypothetical baseline of traffic conditions rather than actual existing conditions. The Court rejected the argument, finding that an EIR can take into account normal growth in traffic, and "predicted conditions may serve as an adequate baseline where environmental conditions vary." The Court wrote that a lead agency has discretion to set the baseline at a point in time between the commencement of environmental review and certification of the EIR, as long as the decision is supported by substantial evidence, which was demonstrated in the subject EIR. Accordingly, the Court rejected the claim by the plaintiffs. Download the full decision here:
Pfeiffer Decision.

Ballona Wetlands Land Trust v. City of Los Angeles  

(2011) 201 Cal.App.4th 455

As we previously wrote (see our January 2012 eAlert), the Court suggested in this ruling that CEQA Guidelines Section 15126.2(a) oversteps the legislative intent underlying the statute.
  Section 15126.2(a) states that an EIR should address impacts associated with locating development in areas susceptible to hazardous conditions, such as flood hazards, wildfire risk, and more. The Court held that an EIR is not required to address the impacts of the environment on a proposed project; it is only required to address the impacts of a project on the environment. On March 21, 2012, the California Supreme Court denied a petition for review of this case, and also denied a separate petition to depublish the case. It thus stands as law, albeit one that conflicts with other CEQA decisions relating to Section 15126.2(a). Download the full decision here:  Ballona Wetlands.

Madera Oversight Coalition, Inc. v. County of Madera   

(2011) 199 Cal.App.4th 48

This was another case that contradicts standard CEQA practice. The Court ruled that the EIR for a large development project improperly deferred mitigation by requiring "verification" that a site was an historical resource prior to requiring additional protection measures. The Court stated that such a determination cannot be deferred. It also wrote that preservation of historic resources in place must be adopted if feasible unless the lead agency determines that another form of mitigation is available and provides superior mitigation of the impacts.   


This case also clarified that the administrative record can include all written records pertaining to a challenged project, including subcontractor files. The Court has the authority to adjudicate disputes over the contents of the administrative record. The Court did not address the question of whether a comment letter submitted and subsequently withdrawn at the request of the commenter becomes part of the administrative record.  Download the full decision here:  Madera Oversight


City of San Diego v. Board of Trustees of the California State University (2011) 201 Cal.App.4th 1134

This case invites endless inquiry into alternative mitigation strategies (particularly for publicly-funded projects), and may have a big impact on CEQA practice. The EIR for an expansion of San Diego State University identified significant traffic impacts to 30 roadway intersections, and required California State University (CSU) to pay a "fair share" of funding for intersection improvements. Because the funding required an appropriation from the State Legislature, which CSU lacked the authority to ensure, the EIR concluded that adequate mitigation of the impacts was uncertain, and they were therefore significant and unavoidable. The Court ruled that CSU was obligated to consider other sources of funding as well as other operational alternatives. The Court also determined that mitigation requiring development of a Transportation Demand Management (TDM) program did not identify performance standards to be met or specific actions to be taken, and therefore improperly deferred the mitigation. You can read the full decision here:
CSU Decision.

Additional Legal Notes             

  • An EIR prepared by the City of Carmel for a proposal to sell a City-owned historic Tudor mansion was successfully challenged because the City failed to respond in the Final EIR to just one of the comments submitted on the Draft EIR. (The Flanders Foundation v. City of Carmel-By-the-Sea, Court of Appeal, 6th Appellate District, 2012)

  • According to land use and CEQA attorneys Abbott & Kinderman, when posting a Notice of Determination with the County Clerk for the required 30-day period, lead agencies should make sure the Clerk does not count the first day. The same precaution should taken with EIR public review periods. If the last day lands on a weekend or holiday, the posting or review period should be extended to the next business day. This will ensure the statutory review periods are satisfied and do not provide a basis for a legal challenge to procedural compliance.  

  • Last year's Assembly Bill 900, which provided for a streamlined judicial review for legal challenges to EIRs on qualified "leadership projects," has been challenged in a lawsuit brought by the Planning and Conservation League against the State Legislature. (We wrote about AB 900 in our November 2011 eAlert, and featured interviews with leading CEQA attorneys  regarding the impact of the legislation in our December 2011 eAlert.) In addition, the Judicial Council, the policy-making body of the California court system, has recently publicly opposed AB 900, asserting that it would overburden the court system.  

  • Draft CEQA guidelines implementing Senate Bill 226 for streamlining infill projects (which you can also read about in our November 2011 eAlert) have been released by the Governor's Office of Planning and Research for public review and comment. You can download the draft guidelines here:  Draft SB 226 Guidelines.
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 legally defensible environmental analysis services necessary to get their projects expeditiously approved and built. Learn more on our website:  Douglas Herring & Associates.
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