Welcome to CEQA News You Can Use, a quarterly production of Brownstein Hyatt Farber Schreck, LLP’s Natural Resources lawyers. This publication provides quick, useful bites of CEQA news, which we hope can be a resource to your real-time business decisions. That said, it is not and cannot be construed to be legal advice. Enjoy!
CEQA can’t stop, won’t stop regional board permit
Does CEQA prevent a Regional Water Quality Control Board from issuing its own permit under state water quality law? In Santa Clara Valley Water District v. San Francisco Bay Regional Water Quality Control Board (2020) 59 Cal.App.5th 199, the First Appellate District answered “no,” holding that CEQA does not bar a regional board from imposing additional requirements on a flood control project, even after the project’s final environmental impact report (FEIR) was certified. To protect against Berryessa Creek flooding, the Army Corps of Engineers designed a flood control project and named the Santa Clara Valley Water District as a project sponsor. The District certified a FEIR, which included various mitigation measures. The Regional Board then certified the Berryessa Creek project per section 401 of the Clean Water Act under time pressure from the District and the Army Corps of Engineers in order to preserve federal funding for the project, but included the caveat that it would later issue a waste discharge requirement permit (WDR) under the state Porter-Cologne Water Quality Control Act requiring the District to perform additional mitigation. After the Regional Board issued the WDR, the District challenged the order, claiming that because the Regional Board failed to impose mitigation as a responsible agency during the CEQA process, it was now barred from doing so. The court rejected the District’s argument, however, noting that the Regional Board has independent authority to impose mitigation under the Porter-Cologne Act.
No room for error when it comes to CEQA’s statute of limitations
In a case that left the court reaching the “uncomfortable conclusion” that a CEQA suit must be dismissed, the Sixth District Court of Appeal found that the city’s failure to send a community group a corrected notice of determination (NOD) was not enough to save its challenge to an EIR. Organizacion Comunidad de Alviso (Organizacion) requested a copy of the NOD for the project approved by the city. The city sent Organizacion the NOD, as required by CEQA (see Pub. Res. Code § 21167(f)), but identified the wrong real party in interest for the project. Five days later, the city filed a corrected NOD identifying the true real party in interest with the county clerk, but failed to send Organizacion the corrected NOD, in violation of CEQA. Organizacion filed a CEQA action within 30 days of the first NOD, but named the wrong real party in interest, relying on the first NOD. Organizacion later filed an amended petition naming the proper real party in interest, but more than 30 days after the county clerk posted the corrected NOD. Finding Organizacion’s petition time-barred, the court found that the city’s corrected NOD triggered CEQA’s 30-day statute of limitations and reiterated the Supreme Court’s admonition that it is the “responsibility of potential litigants to review [NODs], and any revisions, with care.”
Challenge to historic statue removal barred by failure to exhaust administrative remedies prior to suit
In 2018, San Francisco approved the removal of an historic bronze statue called “Early Days,” depicting a Catholic priest leaning over a Native American, which had been criticized as racially insensitive. Two plaintiffs advanced a range of legal claims challenging the removal of the 1890s-era statue, including a challenge to the CEQA categorical exemption cited by the city. In Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, the court rejected plaintiffs’ CEQA claim because they did not administratively appeal the CEQA determination to the Board of Supervisors, the body responsible for hearing such appeals.
New CEQA bills: wildfire, affordable housing, oh my!
The California State Legislature has its hands full with over 30 proposed CEQA bills this session. Shifting from the last year’s focus on COVID-19, the legislature has renewed its efforts to address the affordable housing crisis and wildfire risk. More than a third of the proposed CEQA bills address the affordable housing crisis by streamlining CEQA review for local agencies’ general plans (AB 1486) and eliminating environmental review for certain small-scale and affordable housing developments (AB 1016, SB 9 and SB 10) and student housing (AB 1277). AB 672 would even require the rezoning of golf courses for housing and exempt the zoning change from CEQA. To promote projects that reduce wildfire risk, AB 267, AB 380, AB 1154, SB 412 and SB 506 seek to simplify environmental review for forest thinning and fuel reduction. AB 819 also seeks to modernize the distribution of environmental documents and notices by requiring lead agencies to mail or email them to interested parties, in addition to posting them on the lead agency’s website. And SB 7 would renew AB 900 and provide CEQA litigation streamlining benefits for certain “environmental leadership” projects.
Big money fines upheld in back-to-back Coastal Commission cases
Although this newsletter focuses on CEQA, we occasionally like to throw in Coastal Commission matters to spice things up. And the recent appellate decisions in 11 Lagunita, LLC v. Cal. Coastal Comm’n (2021) 58 Cal.App.5th 904, and Lent v. Cal. Coastal Comm’n (2021) __ Cal.App.5th ___, definitely bring the heat. Both cases are cautionary tales for property owners in the coastal zone. In 11 Lagunita, after the homeowner agreed to limit its proposed single family home remodel to “cosmetic” changes, the Commission issued a coastal development permit for seawall reinforcement with strict conditions: (a) the seawall could remain until the house was “remodeled in a manner that constitutes new development” and (b) future development could not rely on the seawall. The homeowner then proceeded with a significant remodel anyway. After a neighbor complained, the Commission issued a cease and desist order to remove the seawall and imposed a $1 million administrative penalty. The 11 Lagunita court upheld the penalty, and the Supreme Court denied review on March 25, 2021. The homeowner’s attorney recently stated, “I expect the seawall will be removed ... The fate of the house itself is not yet clear, but prospects appear grim.”
In Lent, the Commission issued a $4.185 million administrative fine in response to a homeowner’s refusal to remove improvements blocking a public coastal access easement, which exceeded the commission staff’s recommended fine by over $3 million. The appellate court upheld the fine and rejected the property owner’s claim that the fine constituted an unconstitutional penalty.
