The decision does not come as a surprise, given that state court of appeal decisions consistently have upheld local land use regulation of dispensaries.

In City of Riverside v. Inland Empire Patients Health and Wellness Center, the court considered Riverside zoning ordinances declaring that a “prohibited use” of land within the city includes a medical marijuana dispensary, as well as any use that is prohibited by federal or state law.  The ordinances provide these prohibited uses may be abated as a public nuisance.  Under this authority, the city filed suit to shutter a medical marijuana distribution facility within its borders.

In upholding an injunction against operation of the facility, the supreme court rejected a claim the city’s total ban was preempted by state law.  The court reasoned California’s medical marijuana statutes represent “but incremental steps” toward liberalizing access to marijuana by qualified patients, as those narrowly-drawn statutes merely exempt specified conduct from sanctions under state criminal and nuisance laws.  They neither expressly nor impliedly limit a local jurisdiction’s constitutional police power to regulate the use of its land.

In support of its ruling on the preemption issue, the court noted that because local interests may vary, it may not be reasonable to expect every jurisdiction to allow medical marijuana dispensaries.  Cities and counties, therefore, need not accommodate them.

The court’s decision did not focus on the interplay between California state law and the federal Controlled Substances Act, which bars marijuana possession, distribution, and manufacture in most circumstances.

City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., S198638 (May 6, 2013)

This issue has been gaining in importance, as the EPA has increasingly used its veto power in recent years.  This was the first time, though likely not the last, that the EPA vetoed a permit that the Corps already had issued.  See our recent update for more information about the D.C. Circuit’s decision.

The case involved the “Survey and Manage Standard” for the Northwest Forest Plan, which governs about 25 million acres of federal land from San Francisco to the Canadian border.  The Standard seeks to aid the Bureau of Land Management, the U.S. Forest Service, and other federal agencies in assessing the impacts of logging on 400 little-known but ecologically important species.  In 2007, the agencies decided to eliminate the Standard due to its costs and complexity.  But environmental groups sued and succeeded in obtaining a favorable summary judgment ruling under the National Environmental Policy Act.  The environmental groups and the agencies then settled their dispute and the district court approved a consent decree.  But a logging company, which had previously intervened as a defendant, objected to the consent decree because it imposed new regulatory requirements under the Survey and Manage Standard without satisfying the public notice and comment requirements for rulemaking proceedings. 

The Ninth Circuit ruled that the district court abused its discretion in approving the consent decree.  The court found that the consent decree made substantial substantive amendments to the Survey and Manage Standard, and that these types of regulatory changes could only be adopted through formal rulemaking procedures.  The court distinguished its previous decision in Turtle Island Restoration Network v. U.S. Dept. of Commerce, 672 F.3d 1160 (9th Cir. 2012), where the consent decree merely vacated a portion of a challenged regulation and temporarily reinstated the prior version of that regulation to preserve the status quo pending a new rulemaking.  Here, the agencies were effectively using a consent decree to make new rules. 

Although it addresses a limited procedural issue, the ruling is important, since environmental groups and agencies often resort to consent decrees to resolve  disputes over how environmental regulations should be implemented and enforced.

The eagerly-awaited amendments to SB 731, the “CEQA Modernization Bill” have surfaced.   

The initial iteration of this bill was a placeholder which outlined topics that would be included in later amendments.   As amended on April 23, the bill addresses many of the issues presaged by the initial version, as well as various non-CEQA issues.  Unfortunately, little if anything in the amended version would help to simplify the CEQA process.  And several of its provisions would likely result in more procedural requirements than previously existed. 

New requirement that draft findings be made available for comments.    The bill would add a new requirement that an agency’s CEQA findings be made available in draft form for public review for at least 15 days before a proposed project is approved.  The bill has detailed requirements for providing notice that the draft findings are available, including electronic posting, newspaper publication and individual notice by both electronic mail (if available) and regular mail to individuals, organizations, and responsible and trustee agencies that commented on the Draft EIR, the applicant, and any person who has filed a written request for notice.  CEQA currently does not require agencies to provide notice of, and circulate draft or final findings.

New requirement for annual reporting on mitigation monitoring.  The bill would impose a new requirement that lead agencies prepare an annual report on each approved project’s  compliance with required mitigation measures.  Such an annual report must  be made available online. It is not clear whether the requirement to prepare and post the annual report would open up an annual opportunity to file a CEQA suit challenging such a report.

Preparation of record for litigation as project is being processed.  It’s often obvious before the lead  agency even starts work on the CEQA document that opponents will file a CEQA lawsuit.  In apparent recognition of this fact, the amendment would allow applicants to request that the agency start preparing its  “record of proceedings” at the very beginning of the CEQA process and would require the lead agency to comply with that request for certain types of projects.  The agency would be required to start posting documents included in the record  on the web within only a few days of when they become available.  In a further departure from existing law, the costs of preparing the record would be borne by the applicant and would not be recoverable from a petitioner who brings and loses a CEQA claim against the agency.  The process of determining which documents are part of the record, and posting them on the web within tightly prescribed windows could be quite difficult for agencies to accomplish.  This may create substantial risk of new causes of action for violations of these newly created procedural requirements, exposing project approvals to even more litigation uncertainty than exists now.

New restrictions on courts’ remedial discretion.  The bill would add a new requirement that a court finding a CEQA document invalid on one ground enter a blanket order invalidating the entire document, unless the court makes specific findings that the invalid portion of the document is severable from the rest of it, and that the court has not found the rest of the document to be in noncompliance with CEQA.  The bill would also add a new requirement that after a writ of mandate is issued, the respondent agency must file a  report with the court describing the specific actions it will take to comply, its schedule for doing so, and the period for comment on the revised document.   

Development of standardized thresholds of significance for certain projects.   The bill calls for the Office of Planning and Research to adopt revisions to the CEQA Guidelines that will contain thresholds of significance for noise, transportation and parking impacts for certain types of projects within “transit priority areas,” defined as areas within one-half mile of a major transit stop.  It also provides that the aesthetics of such projects shall not be considered significant impacts on the environment.  However, the provision would not preclude public agencies from adopting more stringent thresholds of significance.  In addition, the bill would re-introduce “parking” as a CEQA impact, at least in transit priority areas, years after the CEQA Guidelines were amended to eliminate reference to parking as a CEQA issue following a 2002 court decision holding that lack of parking is not an environmental impact. 

Information that is not substantial evidence is not “new information” for purposes of the exemption that applies to specific plan EIRs.  Under Government Code 65457 a residential project that is consistent with a specific plan can rely on the EIR for the specific plan, and is exempt from further CEQA review, unless one of the events specified in Public Resources Code section 21166 as triggers for a subsequent or supplemental EIR occurs. The bill would add a provision to section 65457 which essentially states that information which already would not qualify as substantial evidence under CEQA’s existing definition of that term may be disregarded in determining whether such an event has occurred.

Acknowledgement that tolling agreements are appropriate.  Parties frequently enter into agreements allowing the statute of limitations for the filing of a lawsuit to be suspended while they engage in settlement negotiations.  In Salmon Protection and Watershed Networks (see prior post) the court held that this long-standing practice applies in CEQA cases.  The bill would acknowledge  the holding of this case. 

Applicants for renewable energy projects may comment on the benefits of their own proposals.  The bill provides that an applicant for a renewal energy project may present comments to the public agency considering its project explaining the environmental benefits of the project.

 Although it is still subject to an appeal to the Ninth Circuit, the case demonstrates how recent technological advances in the industry have significantly outpaced the federal planning and environmental review process for oil and gas development on public lands.  The case also illustrates the thorny agency decision-making process that may lie ahead for parties seeking to drill in federal shale formations.

 See our recent update for more information about the decision. 

Larry Hagman (J.R. in Dallas and Major Nelson in I Dream of Jeannie) owned a 30-acre parcel in Ojai adjacent to property owned by Meher Mount, a tax-exempt religious group devoted to “the betterment of mankind by implementing the teachings of Meher Baba.”  In 1987, Hagman inadvertently fenced in approximately half an acre of Meher Mount’s property.  In 2011, having occupied the half acre for more than five years, Hagman sued to quiet title to it based on adverse possession. 

Meher Mount responded that, as a tax-exempt public benefit corporation, it was a public entity, immune from adverse possession.  It contended that public benefit corporations are “public corporations,”  and because public corporations are public entities, public benefit corporations are necessarily public entities. 

The court disagreed,  for two reasons.  The term “public corporation” is used to designate specific entities that exercise governmental functions.  The fact that the terms “public corporation” and “public benefit corporation” share two of the same words does not make them synonymous.  Nor can public benefit corporations be public entities, the court said, since they do not serve a governmental purpose or possess any of the traditional incidents of sovereign authority, such as the power to tax or condemn property.

The court also rejected Meher Mount’s argument that Hagman had failed to prove payment of taxes on the disputed property as a prerequisite to adverse possession.  An adverse possessor must pay all taxes “levied and assessed” against the land for a period of five years. However, due to Meher Mount’s tax-exempt status, no property taxes had been either levied or assessed against the property, and so Hagman was not required to have paid property taxes to establish adverse possession.

No, according to a recent decision by the federal Ninth Circuit Court of Appeals:

There is no Clean Water Act violation because the pollution discharge is not from a “point source” as that term is used in the Clean Water Act; a utility pole is not a “discernible, confined and discrete conveyance” of pollution.   It’s also not a discharge “associated with industrial activity” subject to the Act.  There is no RCRA violation either, according to the court, because wood preservatives that escape from utility poles are not “solid waste.”

Ecological Rights Foundation v. Pacific Gas and Electric Co. (9th Cir. No. 11-16042, Apr. 3, 2013).  See our recent update on the case for further details.

Plan Bay Area implements SB 375, which was enacted in 2008 and requires each of California’s metropolitan areas to adopt sustainable communities strategies to reduce greenhouse gas emissions from cars and light trucks.  The Bay Area is projected to add 2.1 million people by 2040, increasing the total regional population from 7.2 to 9.3 million.  At the same time, the Bay Area’s target for greenhouse gas reduction under SB 375 is a 7% per capita reduction by 2020 and a 15% per capita reduction by 2035. 

Plan Bay Area seeks to achieve these targets by concentrating future development within Priority Development Areas – areas identified by local governments for pedestrian-friendly and transit-oriented new development.  Plan Bay Area will encourage cities and counties to focus their future development within Priority Development Areas by directing transportation investments to projects that will serve them.   Plan Bay Area’s preferred land use scenario calls for 80% of new Bay Area housing to be developed within Priority Development Areas.   

The public comment period on both the draft Plan Bay Area and the Draft Environmental Impact Report remains open until 4:00 p.m. on Thursday, May 16th.  Public hearings on Plan Bay Area and the Draft EIR are scheduled in all nine Bay Area counties.   

The draft plan and draft EIR are available at the following links:  Draft Plan Bay Area; Draft Environmental Impact Report.

The target of Kern County’s biosolids ban was Green Acres Farm, a 4,700-acre farm in an unincorporated area of the county owned by the City of Los Angeles.  As part of the city’s program to recycle all of the biosolids produced by its wastewater treatment plants, the city began land applying biosolids at Green Acres in 1994 for the growth of crops to feed dairy cows.  After buying the farm in 1999, the city upgraded its treatment plants to satisfy Kern County regulations imposing strict treatment standards on biosolids used for land application.

Kern County voters then enacted a total ban on the land application of biosolids.  The city, along with a coalition of other plaintiffs, obtained a preliminary injunction followed by a judgment setting aside the ban, finding it violated both federal and California law.  After the federal law claim was dismissed by the court of appeals, the case ultimately landed in state court for a decision on the state law claims.

In a recently-published opinion, the court of appeal upheld a preliminary injunction the superior court had issued to prohibit the county from enforcing the measure.  City of Los Angeles v. County of Kern (5th Appellate District No. F063381).

The court first ruled that the plaintiffs were likely to prevail on their claim the ban is preempted by the California Integrated Waste Management Act.  The IWMA requires local agencies to promote and maximize recycling, in order to divert otherwise useful materials from being disposed of in landfills.  The court readily found a fatal conflict:  “Kern County asks us to adopt a position that would authorize all local governments to say ‘not here.’  That principle would not be consistent with a statute that requires all local governments to adhere to waste management plans in which recycling is maximized.”

The court also found that the plaintiffs were likely to prevail on their claim the ban runs afoul of the “regional welfare” doctrine.  Under this doctrine, when a local jurisdiction enacts a land use ordinance that affects surrounding communities, it must consider the regional welfare and take account of competing interests.  Here, there was no evidence that Kern County voters considered the welfare of surrounding communities in adopting the biosolids ban.

The court quoted the superior court to highlight the overarching principle in the case:  California does not consist in “separate fiefdoms,” “all insular from each other.”  “Localities cannot retreat into isolationism….  We all live here, and what any state actor does elsewhere may affect us all.”

Residential Projects Consistent with an EIR-Based Specific Plan are Exempt from CEQA. Government Code section 65457 exempts residential projects that are consistent with a specific plan from CEQA if an EIR was certified for the specific plan, and none of the events in CEQA section 21166 have occurred to trigger the requirement for a supplemental EIR.  In the first published opinion to interpret section 65457, the court explained that a development comprising residences together with “the usual incidents of residential units, such as yards, parks, or other uses authorized as permitted uses within a residential zoning district” qualifies as a residential project under the statute.  The opinion also makes clear that a residential development is not disqualified from the exemption simply because the applicable zoning designation might allow nonresidential uses, as long as the approved project is entirely residential.  

A Tiered EIR Need Not Follow a Program EIR.  As is often the case, the EIR for the specific plan was prepared as a program EIR under CEQA Guideline 15168  The EIR indicated further CEQA review would occur as projects to carry out the plan are considered.  The plaintiffs claimed that because the city was relying on a program EIR, a tiered EIR “must necessarily follow.”  In rejecting this claim, the court explained  that “nothing in section 15168 or any other provision mandates a particular level of environmental review in evaluating later projects within the scope of a certified program EIR.”  The opinion thus confirms the basic principle that the level of environmental review required for a project within the scope of a program EIR will vary from case to case.  Further review can include no new environmental document, a finding the project is exempt, adoption of a negative declaration, or preparation of an EIR, depending on the situation.

New Significance Thresholds Are Not New Information.  When a project is considered for approval based on a previously certified EIR, project opponents invariably claim that “significant new information” has come to light since the EIR was certified and that a supplemental EIR is required by CEQA section 21166.  Here, the plaintiffs pointed to the BAAQMD’s newly-adopted significance thresholds for greenhouse gas emissions in claiming that the project’s greenhouse gas emissions are a new significant impact requiring a supplemental EIR.  But the opinion makes clear that a change in significance thresholds does not qualify as “significant new information,” as it does not show that the physical impact the project will have on the environment has changed.  The court’s ruling on this issue should provide helpful guidance in a variety of situations where it is claimed that new information about the classification of an impact, rather than new information about the nature or extent of the impact, triggers the need for supplemental CEQA review.