• Aesthetic Impacts in Transit Priority Areas Not Significant. Bill would provide that aesthetic impacts of a residential, mixed-use residential, or employment center project, as defined, within a “transit priority area,” shall not be considered significant impacts on the environment.
• Significance Thresholds in Transit Priority Areas.  Bill would require revisions to CEQA guidelines establishing significance thresholds for noise, and transportation and parking impacts of residential, mixed-use residential, or employment center projects within transit priority areas.  Agencies could, however, adopt more stringent thresholds.
• Lead Agencies Required to Make Draft Findings Available to Public.  The bill would require the lead agency to make findings available to the public at least 15 days prior to approval of the proposed project and to provide specified notice of the availability of the findings for public review.
• Concurrent Preparation of Record of Proceedings.  The bill would require the lead agency, at the request of a project applicant for specified projects, or with the consent of the lead agency for any project, to prepare a record of proceedings concurrently with the preparation of CEQA documents.  A project applicant taking advantage of this procedure would not be entitled to recover costs of compliance from a litigant that unsuccessfully challenged the project.
• Tolling Agreements Expressly Authorized.  The bill would authorize tolling agreements to extend the time period in which a person is required to bring a CEQA lawsuit.
• Online Mitigation and Monitoring Plans.  Bill would require the lead agency, as a part of the mitigation and monitoring plan, to prepare an annual report on project compliance with the required mitigation measures that is publicly available online.
• Identifying Certain Events that Shall Not Invalidate CEQA Exemptions Based on Projects’ Implementation of Specific Plan.  This bill would specify that new information consisting solely of argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or evidence of social or economic impacts that do not contribute to, or are caused by, physical impacts on the environment, would not disqualify a residential project implementing a Specific Plan from taking advantage of the CEQA exemption for such projects.
• Courts’ Issuance of Peremptory Writs of Mandate.  Where a court finds a public agency has violated CEQA, this bill would require the court to issue a peremptory writ of mandate specifying actions that a public agency needs to take to comply with CEQA.  The bill would require the writ to specify the time by which the public agency is to file an initial return to a writ containing specified information.
• Funds to Implement Sustainable Communities Strategy.  This bill would state the intent of the Legislature to appropriate $30,000,000 annually to provide competitive grants to local agencies for planning activities for the implementation of the sustainable communities strategy.
• Governor’s Advisor on Renewable Energy Facilities.  Bill would establish position of Advisor on Renewable Energy Facilities in the Governor’s Office (until January 1, 2017).
• Reimbursement Not Required for Certain State Mandates. Of the state mandates that would be imposed on local agencies and school districts by this bill, some would not be reimbursed and others would be reimbursed if the Commission on State Mandates determines that the bill contains costs mandated by the state.

SB 633 (Pavley)  New Categorical Exemption and Revision to “New Information” Standard.  (Last amended May 3, 2013.  Passed to Assembly May 30, 2013)

• The bill would authorize a new categorical exemption for a class of projects involving minor temporary uses of land and public gatherings.
• In addition, CEQA prohibits a lead agency or responsible agency from requiring a subsequent or supplemental EIR unless one or more specified events occurs, including that new information, which was not known and could not have been known at the time the EIR was certified as complete, becomes available and shows that the project would have new or substantially more severe environmental impacts than were previously identified.

      This bill would specifically require that the new information that becomes available was not known and could not have been known “by the lead agency or any responsible agency” at the time the EIR was certified as complete.

AB 37 (Perea)  Requiring Lead Agencies to Prepare Record of Proceedings Concurrently with Preparation of Environmental Documents for Certain Projects.  (Last amended March 18, 2013.  Passed to Senate May 28, 2013. Referred to Com. on E.Q. June 6, 2013)

Until January 1, 2017, this bill would require that at the request of a project applicant for certain types of projects, or with the consent of the lead agency for any project, the lead agency prepare a record of proceedings concurrently with the preparation of negative declarations, mitigated negative declarations, EIRs, or other environmental documents.  This bill is similar but not identical to the concurrent record preparation provisions of proposed SB 731.

AB 543 (Campos)  Requiring Translation of CEQA Documents.  (Last amended May 24, 2013. Passed to Senate May 31, 2013. To Com. on RLS for assignment June 3, 2013)

“SECTION 1.  Section 21097 is added to the Public Resources Code, to read:

21097.  (a)  When a group of non-English-speaking people comprises at least 25 percent of the population within a lead agency’s jurisdiction, and a project is proposed to be located at or near an area where the group of non-English-speaking people comprises at least 25 percent of the residents of that area, a lead agency shall translate each of the following into the language spoken by that group of non-English-speaking people: 

(1)  Any notice required pursuant to Section 21083.9,21092, 21152, 21161 or any notice authorized pursuant of subdivision (b) of section 21108 or subdivision (b) of Section 21152. 

(2)  A summary of any negative declaration, mitigated negative declaration, or environmental impact report.

(b)  For the purposes of this section, ‘group of non-English-speaking people’ means a group whose members either do not speak English or who are unable to effectively communicate in English because it is not their native language.

SEC. 2. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code.”

SB 436 (Jackson)  Requiring Public Scoping Meeting and More Extensive Public Notice for Certain Projects.  (Last amended April 3, 2013. Passed to  Assembly May 25, 2013. Held at Desk May 29, 2013)

• The bill would require a lead agency to conduct at least one public scoping meeting for a project that may affect highways or other facilities under the jurisdiction of the Department of Transportation, or for a project of statewide, regional, or areawide significance, and to provide notice to specified entities of at least one public scoping meeting.
• CEQA section 21092 requires any lead agency that is preparing an EIR or a negative declaration or making a determination under CEQA section 21157.1(c) to provide public notice within a reasonable period of time prior to certifying the EIR, adopting the negative declaration or making the determination.

The bill would increase notice requirements to require that notice be given to a list of specified parties, including the State Clearinghouse and project applicants, and by at least one of the several listed procedures.

AB 380 (Dickinson)  CEQA: notice requirements.  Increasing Public Noticing and Posting Requirements for Agencies, County Clerks and OPR.  (Last amended May 24, 2013. Passed to Senate May 29, 2013; to Com. on RLS)

• This bill would require that certain notices currently required to be filed with either the Office of Planning and Research or the county clerk be filed with both.  The bill would require the county clerk to post the notices within one business day, as defined, of receipt and post the notices for at least 30 days.  The bill would require the Office of Planning and Research to post the notices on a publicly available online database established and maintained by the office and would require the notices to be posted for at least 30 days.  The bill would specify that a time period or limitation periods specified by CEQA does not commence until the notice is posted on the online data base.  Unlike the other notices addressed by the bill, a notice of exemption would be authorized, but not required, to be filed both at OPR and with the county clerk.

The bill would require notices to be filed solely by the lead agency.

SB 359 (Corbett)   Minor Text Changes.  (Last amended April 1, 2013. Passed to Assembly May 28, 2013)

The bill would make non-substantive grammatical changes to Public Resources Code Section 21092.2 (CEQA notice provisions). 

AB 1060 (Fox)   Fee Exemptions for CEQA Projects Carried Out or Implemented by a Branch of the US Armed Forces.  (No amendments as of May 29, 2013. Passed to Senate May 29, 2013. In committee. Hearing postponed by committee June 10, 2013)

This bill would amend Section 711.4 of the Fish and Game Code by exempting from CEQA filing fees a project being carried out or implemented by a branch of the United States Armed Forces. 

Proposed amendment states: 

“(2) Notwithstanding paragraph (1), a filing fee shall not be paid pursuant to this section if any of the following conditions exist:  [. . .] (E) The project is being carried out or implemented by a branch of the United States Armed Forces.”

AB 667 (Hernández)  Requiring Adoption of Economic Impact Report for Projects Permitting Construction of a Superstore Retailer.   (Last amended May 20, 2013. Passed to Senate May 28, 2013. Referred to Com. on Gov. & F. June 6, 2013)

• The bill would require a city, county, or city and county, including a charter city, prior to approving or disapproving a proposed development project that would permit the construction of a superstore in an economic assistance area, or where a superstore would be the recipient of over $100,000 in financial assistance, to cause an economic impact report to be prepared at the project applicant’s expense.
• The bill would allow permitting of such a superstore only if the legislative body makes a finding that the superstore will not materially adversely affect the economic welfare of the impact area. 

The bill would also require the governing body to provide an opportunity for public comment on the economic impact report.

AB 1267 (Hall)   Exempting Certain Tribal Gaming Projects from CEQA.  (Chaptered by Secretary of State May 30, 2013)

Bill ratifies the amendment to the tribal-state gaming compact entered into between the State of California and the Shingle Springs Band of Miwok Indians, executed on November 15, 2012. The bill provides that, in deference to tribal sovereignty, certain actions may not be deemed projects for purposes of CEQA.

The county timely posted an agenda for a planning commission meeting listing as a single item of business the commission’s consideration of a subdivision application.  The agenda stated, “The action requested is to approve, disapprove or modify the application,” but did not mention the commission would also be considering adoption of a mitigated negative declaration for the project.  At the meeting, the commission approved the application, and, by a separate motion, adopted the mitigated negative declaration.

The petitioners sent the commission a letter alleging it violated the Brown Act agenda requirement and demanding that the commission “cure and correct” the violation by rescinding both actions.  Simultaneously, petitioners appealed the commission’s actions to the board of supervisors.  After the commission denied petitioners’ request, petitioners filed suit.  While the case was pending, without conceding a Brown Act violation, the board of supervisors granted the appeal and directed the commission to rescind the project approval and adoption of the mitigated negative declaration. The commission did so, and then properly re-noticed the agenda, re-approved the project, and re-adopted the mitigated negative declaration.

The trial court found a Brown Act violation and awarded attorneys’ fees to the petitioner.  Hoping to avoid the fee award, the county appealed, but the court of appeal upheld the Brown Act ruling.  The court concluded adoption of the mitigated negative declaration was “plainly a distinct item of business, and not a mere component of project approval,” because it involved a separate action by the commission and concerned discrete issues of CEQA compliance. The Brown Act’s purposes of facilitating public participation would be “impaired” if a public agency could refuse to disclose it would be considering approval of a CEQA document.

The court also rejected the county’s assertion the public would have “implicitly understood” that CEQA documents would “likely be considered” at the time of project approval, noting that even if a person might have speculated from what appeared in the agenda that adoption of a mitigated negative declaration might possibly be considered at the meeting, that would not make the agenda legally adequate; the Brown Act “mandates that each item of business be described on the agenda, not left to speculation or surmise.”  The commission could have easily complied with this requirement “by simply adding a few words, such as ‘and consider adoption of a mitigated negative declaration’ regarding the project.”

The survivors include:

• Senate Bill 731, the “CEQA Modernization Act of 2013″ (see prior post)
• Assembly Bill 37, which would require lead agencies to prepare their records of proceedings at the same time they prepare environmental documents for certain projects
• Assembly Bill 543, which would require translation of certain CEQA notices and CEQA document summaries if 25% of nearby residents are non-English-speaking
• Senate Bill 436 and Assembly Bill 380, which would impose additional CEQA notice and filing requirements.

CEQA-related bills that did not make the May 31 cut included:

• Senate Bill 787, the same far-reaching and controversial CEQA reform proposal that first surfaced in August 2012
• Proposals for specialized divisions within superior courts to handle CEQA cases
• Efforts to overturn recent appellate court decisions holding that CEQA concerns the effects of projects on the environment — not effects of the environment on projects
• Three bills, or portions of those bills, that would have extended the 2011 Environmental Leadership Act’s CEQA streamlining provisions to additional categories of projects

Perkins Coie will continue to follow proposed CEQA and land use legislation throughout the 2013-2014 legislative session.

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.