April 2010

Filing a Notice of Exemption Triggers a 35-day Statute of Limitations for CEQA-Based Challenge to the Project Approval

The California Supreme Court ruled last week that filing a Notice of Exemption triggers CEQA’s 35-day statute of limitations and that plaintiffs cannot avoid the limitations period by claiming defects in the underlying project approval process. In a lengthy opinion for Stockton Citizens for Sensible Planning v. City of Stockton, the Court’s comprehensive discussion led to a simple, straightforward conclusion – where a lead agency files a Notice of Exemption, the statute of limitations is 35 days for all CEQA challenges to the exemption determination. Read more here.

Counties Should Consider Adopting Wind Ordinances Before Significant Restrictions Take Effect

Attorney Authors: 

Counties that have not done so should consider adopting wind energy system ordinances before Dec. 31, 2010, when restrictions on wind ordinance regulations will take effect pursuant to Assembly Bill No. 45 (“AB 45”) . [To see the codified sections of AB 45, click here.] AB 45 encourages counties to adopt ordinances that provides for the installation of small wind energy systems and declare s it to be the policy of the state to promote and encourage the use of distributed renewable energy systems and to limit obstacles to their permitting and use, including minimization of permitting costs. (See Govt. Code § 65897.) AB 45 also establishes timelines under which counties may review applications for small wind systems and limited fees charged by counties to review applications to those reasonably incurred. (Govt. Code §§ 65895(b)(2), 65920, 66014 and 66016.)

This bill has allowed counties to exercise great flexibility in crafting regulations for small wind energy systems in keeping with state policy goals and objectives, but this broad latitude will come to an end on December 31, 2010. After that, counties will be far more limited in the conditions and restrictions they may impose on these projects relating to notice, tower height, setback, noise level, visual effects, turbine approval, tower drawings, engineering analyses, and line drawings. (Govt. Code § 65896.) Ordinances in effect before January 1, 2011 will be grandfathered in and will not need to comply with Govt. Code §65896. In light of these changes which will take effect in 9 months, counties that intend to adopt such ordinances but have not yet done so should consider whether to make this effort a priority for completion in 2010.

EIR Not Required to Evaluate Off-Site Alternative Which Does Not Meet Project Objectives

The Lawrence Berkeley National Laboratory ("Lab") is a special research facility which, though located primarily in the Berkeley hills on land owned by the Regents of the University of California, is financed by the federal government. In Jones v. Regents of the University of California, the Court of Appeal has upheld an Environmental Impact Report for the Lab's Long Range Development Plan. Under the LRDP, buildings at the Lab's main "hill site" would increase to 2.4 million square feet, from an existing 1.7 million square feet. The Court held that (1) the EIR was not required to evaluate an alternative which would not meet the agency's stated objectives for the project, and (2) plaintiffs were barred from challenging the EIR's methodology for analyzing certain impacts by failure to raise that issue during the administrative approval process. Read more here.

Court of Appeal Decision Adversely Affects Public Entity Liability for Dangerous Conditions

In an opinion published on April 16, 2010 the California Court of Appeal, Third Appellate District held that in cases in which a plaintiff has alleged that a dangerous condition of public property caused injury, the public entity defendant cannot rely on the absence of prior accident claims to prove that the public property did not pose a substantial risk of injury to the plaintiff. In the case, Lane v. City of Sacramento, C060744, the City of Sacramento brought a summary judgment motion on the plaintiff's claim that the dangerous condition of the City's roadway caused an automobile accident. The City argued that it could not be liable because in the absence of prior accidents, there was no basis to find that the roadway posed a substantial risk of injury. In support of the argument, the City relied on evidence that no previous claims had been filed against the City for injuries at the subject location.

In reversing the trial court's order granting summary judgment on behalf of the City, the Court of Appeal found that the City's evidence showed only that the City had found no evidence of prior claims against the City in connection with accidents at the location in question, rather than showing that no other accidents had actually occurred there . The Court also stated that a lack of prior accidents, even if properly proven, would not be enough by itself to bar Plaintiff's claim at the summary judgment stage, although it would be relevant supporting evidence.

This decision is important because it requires public entities defending themselves from dangerous condition claims present sufficient evidence that no other accidents occurred at the location in question . Simply showing that no previous claims ha ve been filed will not be sufficient. The Court of Appeal did not specify what would be an adequate way of proving a lack of accidents. It seems, though, that a lack of police reports would be one helpful, further step beyond a lack of claims. The issue will have to be developed in future cases. The opinion, available here, also contains important discussions regarding the relevance of a plaintiff's exercise of due care, and the causation element of a dangerous condition claim.

City's General Plan Update Violates State Aeronautics Act

The State Aeronautics Act is not commonly the subject of land use lawsuits, but it was for the Sixth District Court of Appeal in the case of Watsonville Pilots Association v. City of Watsonville. The court upheld a challenge to the City of Watsonville 2030 General Plan update, finding that the plan did not reflect statutorily required elements and standards for airport safety. The related EIR fared little better as it failed to adequately analyze airport compatibility issues and a reduced development alternative; however, the court upheld the EIR water supply analysis based on the factors in Vineyard Area Citizens v. City of Rancho Cordova.

This decision provides a useful summary of the Airport Land Use Commission statute and processes. It is particularly useful guidance for integrating long-term land use planning and airport planning through the general plan process and related CEQA review. The decision also provides an example of a successful water supply analysis that satisfies the California Supreme Court's direction in the Vineyard case.

Read more here.

Proposed Bill Would Let Redevelopment Agencies Directly Assist Local Businesses

Attorney Authors: 

Current law limits a redevelopment agency’s authority to give local businesses economic assistance. The California Redevelopment Law only explicitly authorizes agencies to provide commercial rehabilitation loans and, in certain circumstances, financial assistance for industrial and manufacturing facilities and capital equipment. However, AB 2531, introduced by Assembly Member Felipe Fuentes, would significantly enhance an agency’s ability to attract and retain local businesses.

AB 2531 would expand the definition of “redevelopment” and explicitly permit agencies to give businesses in a project area direct financial assistance to, among other things, retain or expand employment and increase buildings’ energy efficiency. It would also authorize agencies to establish small business incubators and to guarantee loans for small businesses within project areas. The California Redevelopment Association says that AB 2531 “has the potential to act as both a short-term and long-term economic stimulus program to get California’s economy moving again.”

The Assembly Housing & Community Development Committee will hear AB 2531 on April 28, 2010. To read the full text of AB 2531, click here.

Paper for Plastic? California Supreme Court to Decide If Ban on Plastic Bags Requires Environmental Impact Review (EIR)

The California Supreme Court decided last week to review a Court of Appeal opinion that upheld a claim, brought by a group of plastic-bag manufacturers, that a city was required to prepare an EIR before enacting an ordinance to ban retailers from using plastic bags. (Save the Plastic Bag Coalition v. City of Manhattan Beach, No. S180720.) The Supreme Court will review both whether an EIR was required, and whether the manufacturers’ group had legal standing to challenge the ordinance for lack of an EIR.

The Court of Appeal had split 2-1 on whether an EIR was required. ( Download Save the Plastic Bag opinion.) The majority stressed the “low threshold” for requiring a city to prepare an EIR: if there’s a fair argument based on substantial evidence that any part of a project may significantly harm the environment, then an EIR is required—even if the city could find that the project’s overall effect is beneficial. The majority found that several studies in the record support a fair argument that the ban will raise paper bag use, and that paper bags cause more environmental harm than plastic. (Producing and distributing paper bags takes more fossil fuel and creates more nasty byproducts, among other problems, according to these reports.) The dissent argued that any effect would not be “significant,” because Manhattan Beach is one small city, and that the ordinance was covered by a categorical exemption from CEQA for projects to protect the environment.

The Court of Appeal noted that, since the trial court ruling requiring an EIR, the City of Palo Alto had entered a settlement with the plastic bag group agreeing not to enact a ban until it completed an EIR; San Jose had announced that it will prepare an EIR for a single-use-bag ordinance, and Green Cities California is preparing a Master Environmental Assessment (MEA) for local governments seeking to restrict single-use plastic bags. (See the MEA Scope of Work here.)

Court of Appeals Gives Deputy Coroners An Unkind Cut

The California Court of Appeal recently held that a deputy coroner’s principal duties and functions do not fall within the scope of “active law enforcement” under Government Code section 20436(a). As a result of this determination, deputy coroners are not entitled to be classified as “local safety members”, a classification that would substantially enhance their retirement benefits.

In the case, Riverside Sheriffs' Association v. Board of Administration of the California Public Employees' Retirement System, the Riverside Sheriffs’ Association (“RSA”), as representative of current and retired Riverside County deputy coroners, appealed a decision by PERB refusing to change the status of the deputy coroners to a classification that would have significantly increased their retirement benefits.

The central issue in this case was the determination of the principal duties and functions performed by the deputy coroners. Government Code section 20436(a) grants peace officer status to employees of a county sheriff’s department only if their principal functions “clearly come within the scope of active law enforcement service,” notwithstanding that they may occasionally be engaged in active law enforcement functions. The Court of Appeal found that the deputy coroners’ primary function is to investigate causes of death in unusual cases, not to engage in activities that involve direct contact with criminal suspects or the prevention of crime. Consequently, the Court of Appeal held that the Riverside County deputy coroners could not be classified as local safety members, and were thus not entitled to the enhanced retirement benefits.

This case is a reminder to review classifications carefully, not only for proper job descriptions, functions and duties, but also for the less obvious, and perhaps more costly issue – how much does a county, municipality, or town using the services of a County Sheriff’s department pay into public retirement funds?

CA Court of Appeal Issues First Decision on CEQA and Greenhouse Gas Emissions

The California Court of Appeal issued its first decision on the analysis and mitigation of greenhouse gas emissions (GHGs) under the California Environmental Quality Act (CEQA). The Court ruled that the mitigation of GHGs for a large refinery project was inadequate under CEQA and set aside the environmental impact report (EIR) prepared for the project. In Communities For A Better Environment v. City of Richmond, several environmental groups challenged the City's adoption of a mitigation measure which required the development of a mitigation plan, within one year after the Project approval, to completely reduce the refinery project's new GHG emissions. The Court ruled the mitigation violated CEQA because no specific measures were required, and there was no evidence of the amount of GHG reductions that would result from the proposed measures. The Court found that, in situations where the feasibility of mitigations is not known, the mitigations must be reviewed and analyzed as part of the CEQA public process, not deferred to the future. In addition, the Court was critical of the analysis of GHGs in the EIR which did not articulate a clear standard for determining the significance of Project impacts. The Court also ruled that the EIR's project description violated CEQA, but rejected a challenge based on "piecemealing" of the Project.

The most important aspect of this case is that it establishes legal authority on CEQA requirements for the analysis of GHGs. The Court stated that new recent scientific information on GHGs and their cumulative impact on climate change should be analyzed in the revised EIR. Specific mitigations and an analysis of their efficacy should be included in the revised EIR and subject to public comment and review. The Court acknowledged the difficulties presented by "evolving technologies and scientific protocols" regarding GHGs, but found that these did not excuse the City from its obligation under CEQA to analyze and mitigate environmental impacts. The combination of this case and the recent adoption of the new CEQA Guidelines requiring the analysis of GHGs, makes clear that GHGs must be addressed in CEQA documents. The one important area that awaits further legal guidance is the proper standard for determining whether a project's GHG emissions are a significant cumulative impact. Local air districts are providing guidance on this issue, but the legal adequacy of a significance threshold has not yet been addressed by the courts.

Go here to read the full analysis of this court decision.