The California Environmental Quality Act has long been driven more by the courts than by the Legislature. And 2013 is likely to be a big year in court for EQA. Five pending cases before the California Supreme Court -- and a sixth that might be heard -- could significantly affect how both localities and colleges apply the California Environmental Quality Act.
The cases involve such items as infill exemptions, whether a lack of state funding makes a mitigation infeasible, whether lower fire response times are an environmental impact, and when to use a future environmental baseline.
Infill Exemption: Rendered Meaningless?
Perhaps the most significant is a challenge to categorical exemptions for infill development and small structures that were used by the City of Berkeley in dealing with construction of a large house on an existing single-family home. The Court of Appeal ruled against the city in and if the Supreme Court affirms the lower court ruling it could punch a hole in the infill exemption in particular.
The case involved the proposed construction of a large single-family home with a 10-car garage on an existing lot, resulting in a structure of almost 10,000 square feet. The plaintiffs in Berkeley Hillside Preservation v. City of Berkeley said that this triggered the "unusual circumstances" exception to the infill exemption. The city noted that there are many other houses of similar size nearby, but the First District Court of Appeal ruled in favor of the plaintiffs. As Cox Castle & Nicholson's Michael Zischke put it, "Under Berkeley Hillside, every potentially significant impact is itself an unusual circumstance" -- which, of course, makes the infill exemption meaningless.
State Funding of Mitigation Measures: Infeasible?
The Supreme Court has also granted review in City of San Diego v. Board of Trustees, a case in which the Court of Appeal rejected California State University's argument that an off-site traffic mitigation associated with a development prject at San Diego State is infeasible because the state Legislature has not appropriated funding for it.
Several local agencies, led by the City of San Diego, sued, claiming that Cal State needed to look at a variety of funding sources. On appeal Cal State relied on City of Marina v. Board of Trustees of California State University, 39 Cal.4th 341 (2006), in which the California Supreme Court concluded that the power of a state agency to mitigate impacts is "ultimately subject to legislative control" and if the legislature doesn't appropriate the money "the power does not exist". However, the Fourth District Court of Appeal concluded that the Supreme Court's language in the City of Marina case is dictum and therefore not binding. The court said Cal State should look to a variety of other possible funding sources for the money.
Are Lower Response Times An Environmental Impact?
One of the biggest debates around CEQA is whether its breadth reaches to impact on public services such as traffic, schools, and public safety. On the one hand, traffic is a well-established part of CEQA analysis; on the other hand, it's also well established that the impact of development on schools is not an environmental impact, unless it forces the construction of new schools which, in themselves, have an environmental impact.
Which leaves public safety. In City of Hayward v. Board of Trustees of California State University -- another dispute between a city and Cal State -- Hayward challenged Cal State's environmental impact report for the long-term master plan for Cal State East Bay. The EIR identified the impact on public services and noted that the the campus expansion would require the construction of a new fire station and the hiring of 11 new firefighters. However, the EIR concluded that the fire station's impacts would be less than significant because it would be built in an infill location, as would most of the expansion.
Hayward sued, claiming that Cal State should have mitigated the cost impact of the additional firefighters. Relying on Goleta Union School District v. Regents, 37 Cal.App.4th 1025 (1995), the First District ruled against the city.
"Although there is undoubtedly a cost involved int he provision of additional emergency services, there is no authority upholding the city's view that CEQA shifts financial responsibility for the provision of adequate fire and emergency response services to the project sponsor. The city has a constitutional obligation to provide adequate fire protection services."
The court also upheld a traffic mitigation plan against Hayward's argument that the plan impermissibly punted on the mitigation. The Supreme Court has granted review but has deferred briefing until after the San Diego State case is determined.
Can A Lead Agency Use A Future Baseline?
Last spring, the Second District Court of Appeal ruled against a group of residents in the West Los Angeles neighborhood of Cheviot Hills who had challenged the use of a future environmental baseline in the environmental impact report for the Expo Line. The ruling muddied the waters on the whole future baseline question, so the Supreme Court will soon hear the case.
The Expo Line construction authority's reasoning was that it made no sense to measure the projects environmental impacts against a current environmental baseline when a project won't be constructed for several years. In Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, the Second District ruled that Sunnyvale West Neighborhood Association v. City of Sunnyvale, 190 Cal.App.4th 1351 (2010), in which the Sixth District Court of Appeal ruled that Sunnyvale should not have used a future baseline to estimate traffic mitigations.
The Second District also said that the California Supreme Court's ruling in Communities for a Better Environment v. South Coast AQMD, 48 Cal.4th 310 (2010), did not apply in this case. In that case, the Supreme Court rejected the idea that because Conoco already had regulatory permission to emit a certain amount of pollutants, it could use a theoretical future baseline that assumed the permitted pollutant level had been reached.
Is All GIS Data Public?
Here's one that is not a CEQA case, but Zischke says may be of interest to CEQA practitioners: When is a GIS database a "public record" subject to release at no cost under the Public Records Act and when is it a "computer mapping system" exempt from that law because it is software and, therefore, for which a government agency can charge a fee. CEQA analyses are often based on GIS analysis.
In the case of Sierra Club v. Superior Court, the Sierra Club made a public records request for Orange County's GIS database, which included polygon boundaries for every parcel linked to names and addresses of parcel owners. Like many counties, Orange County has historically charged a fee for this information as a way to recoup cost, though it offered to provide the Sierra Club with a PDF version for free. The appellate court ruled that the GIS database was a computer mapping system exempt from the Public Records Act, meaning the county could charge a fee.
Petition for Review Pending: Can An Initiative Be Adopted Without A Vote -- And Without CEQA Review?
In December, CP&DR reported on a Fifth District Court of Appeal ruling that a voter initiative and CEQA that appeared to create a conflict between districts. That case is pending before the Supreme Court and review could be granted soon.
In Jobs & Small Business Alliance Tuolomne v. Superior Court, Cal.Appl.4th 1006 (2012), the City of Sonora was considering a pending Wal-Mart application -- complete with EIR -- when Wal-Mart filed signatures for an initiative to create a change in the land-use regulations that dispensed with need for discretionary review for the project. Rather than placing the measure before the voters, the Sonora City Council adopted it -- as is their privilege under elections law -- and did not conduct a CEQA analysis on the change, as some previous case law suggests. The Fifth District ruled that this was impemissible and a CEQA analysis was required.
However, in 2004, the Fourth District Court of Appeal ruled in another case, Native American Environmental Protection Assn. v. City of San Juan Capistrano, 120 Cap.App.4th 961, that legislative bodies do not have the discretion to conduct a CEQA review on an initiative they adopt rather than put before the voters. Thus, it would appear that a direct conflict between districts has been created.
