ELG wins a Writ of Administrative Mandate for client in Marin County

Posted by in Administrative Law, CEQA, Environmental Legislation and Regulation on October 7, 2016

On September 19, 2016, Marin Superior Court Judge Paul M. Haakenson granted judgment in favor of ELG’s client, the Point San Pedro Road Coalition (“Coalition”), on its Petition for a Writ of Administrative Mandate (“Petition”).  (See decision here.)  ELG filed the Petition on behalf of the Coalition in 2015 to vacate the Marin County (“County”) Board of Supervisor’s September 15, 2015 decision, by a unanimous 5-0 vote, to approve the permit amendment sought by the San Rafael Rock Quarry (“Quarry”) to allow it to import used asphalt for recycling. That exact activity previously had been found to be outside the Quarry’s vested rights by Marin County Superior Court Judge John Sutro Jr. in 2004, after a 2003 trial conducted by ELG on behalf of Coalition. The Quarry is a non-conforming use on its own property, the result of a re-zoning obtained by a prior owner of the Quarry in 1982 in anticipation of the closing of the Quarry, an event the current owner has delayed.

ELG argued, both in a previous Petition filed in 2013, and again in its 2015 Petition (when the permit amendment was re-approved by the County), that the County’s approval of the quarrying permit amendment was: 1) a violation of Judge Sutro’s prior injunction against that precise activity, 2) contrary to the Quarry’s own acknowledgement at the 2003 trial that it had no vested right to conduct that activity, and 3) an approval of the expansion of a non-conforming use in violation of the County’s zoning regulations. Relying on all three legal grounds asserted by ELG for the Coalition, the Court agreed that the County’s approval of the permit amendment was contrary to law. Judge Haakenson’s decision states that the Court will issue a writ of administrative mandate ordering the County to immediately vacate its approval of the Quarry’s Permit amendment request.

ELG also represented the Coalition in the 2003 trial to determine the Quarry’s vested rights on its legal, non-conforming use property, and throughout the CEQA environmental review process concerning the amended quarrying permit imposed on the Quarry, which took place over six years following the conclusion of the trial.


Deferred EIR Mitigation Measure Satisfies CEQA

Posted by in CEQA, Environmental Litigation on June 26, 2013

The California Court of Appeals held that an environmental impact report (“EIR”) which identified landscaping as a mitigation measure to the project’s visual impact satisfied the California Environmental Quality Act (“CEQA”).  The Court found that the EIR did not need to set forth the specific landscaping plan that would mitigate the impact.  Instead, the details of the mitigation could be deferred pending completion of a future study.

In North Coast Rivers Alliance v. Marin Municipal Water District Board of Directors (May 21, 2013), the Marin Municipal Water District planned to build a seawater desalination plant in Marin County (“Project”).  The District certified an EIR for the project and North Coast Rivers Alliance challenged the EIR for failure to adequately analyze adverse environmental consequences of the Project.

The trial court, citing Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 794, held that the EIR was deficient because the EIR failed to commit to specific measures to mitigate the visual impacts of proposed water storage tanks.  Although the EIR indicated that the landscape plan would identify the location and types of trees and shrubs that would best mitigate the visual impact, the trial court found that the mitigation measure was indefinite and did not satisfy CEQA because it simply required a report to be prepared and followed.  The trial court also indicated that the mitigation measure was deficient because it established no guidelines or criteria to evaluate the adequacy of the landscaping plan and the plan’s goal to soften the visual impact was a vague metric that was difficult to quantify.

However, in cases challenging an agency’s compliance with CEQA, a Court reviews the agency’s action for a prejudicial abuse of discretion, not the trial court’s decision.  Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, 40 Cal.4th 412, 426–427 (2007).  “Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.”  Id.  Here, in the CEQA context, substantial evidence means “enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.” Cal. Code Regs., tit. 14, § 15384, subd. (a) (CEQA Guidelines).

As part of the Project, three water tanks to store desalinated water needed to be constructed.  The EIR indicated that two of the tanks would have a significant visual impact on the proposed location.  The EIR then identified, and the District adopted, a mitigation measure that requires the District to develop and implement a landscaping plan to shield the tanks from view.  The EIR mitigation measure indicated that the district would work with a landscape architect and the cities of San Rafael and Larkspur to develop a landscaping plan that would identify the location and types of planting that would soften the visual intrusion of the tanks and identify success metrics such as survival and growth rate for the plantings.

The Appellate Court found that the mitigation measure requiring a landscaping plan complied with CEQA.  The Court looked to CNPS v. Rancho Cordova and Sacramento Old City Assn. V. City Council which concluded “when a public agency has evaluated the potentially significant impacts of a project and has identified measures that will mitigate those impacts, the agency does not have to commit to any particular mitigation measure in the EIR, as long as it commits to mitigation of the significant impacts of the project.”  California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, 621 (2009) citing Sacramento Old City Assn. v. City Council 229 Cal.App.3d 1011 (1991).  “The details of exactly how the mitigation will be achieved under the identified measure can be deferred pending completion of a further study.”  Id.   The Appellate Court stated, “although the specific details of how mitigation will be achieved under the landscaping plan is deferred until the construction phase, the EIR gives adequate assurance that visual impacts will be mitigated by the selection and location of appropriate plantings.”

Since the EIR evaluated the potentially significant visual impacts of the tanks, identified a landscaping plan with the goal of creating a visual screen to minimize the contrast between the tanks and the ridge top, and the District committed itself to implement, monitor, and maintain the landscaping, the Appellate Court concluded that the mitigation measure satisfied CEQA and was not improperly deferred.

Denied CEQA Challenge Remanded for Failure to Attach Corrective Action Plan to Negative Declaration

Posted by in CEQA, Environmental Litigation on August 11, 2011

The California Fourth District Court of Appeal, in Citizens for a Responsible Equitable Environmental Development v. City of Chula Vista (June 10, 2011), remanded a lawsuit challenging the City of Chula Vista’s (“City”) decision to approve the construction of a Target store based on a mitigated negative declaration because the lead agency failed to attach the Corrective Action Plan (“CAP”) for the site to the negative declaration.  The Appellate Court held that the failure to attach the CAP makes it uncertain whether the construction of the store would cause further migration of the hazardous materials addressed by the CAP into groundwater.


Court of Appeal Requires Strict Compliance with CEQA 30-Day Public Notice Requirements

Posted by in CEQA, Emerging Issues, Environmental Legislation and Regulation on July 27, 2011

The California Court of Appeal, in Latinos Unidos De Napa v. City of Napa, 196 Cal. App. 4th 1154 (June 27, 2011), held that the City of Napa (“City”), which filed a CEQA Notice of Determination (“NOD”) with the County Clerk’s office, did not satisfy the 30-day posting and filing requirement when the notice was removed from the County Clerk’s office mid-day on the 30th day.  As a consequence, the plaintiff, an affordable housing advocate group, was allowed 180 days from the City’s approval of the project to challenge the CEQA NOD under Public Resources Code section 21167(a).

Public Resources Code section 21152(c) requires a County clerk to post the NOD “for a period of 30 days.”  The Court looked to Code of Civil Procedure section 12 for clarification on the timing requirement and determined that the “30-day” period excludes the first day of posting and includes the last day.  The Court clarified that “the NOD must be posted for the entire last (30th) day to satisfy the 30-day posting requirement.”  196 Cal. App. 4th at 1157-1158.  Since the City only posted the NOD for part of the 30th day, and not until the County Clerk’s office closed, the 30-day notice requirement was not met.  The City argued that because it filed the NOD with the County Clerk that action alone satisfied the 30-day posting and filing requirement of Public Resources Code section 21152, relying on CEQA Guidelines section 15094(g).  However, the Court of Appeals determined that CEQA Guidelines section 15094(g), like Public Resources Code section 21152, provides that a NOD must be both filed and posted, and thus rejected the City’s argument.

Court Rejects Chevron Refinery Expansion Appeal

Posted by in CEQA, Environmental Litigation on April 27, 2010


On April 26, the First Appellate District of the California Court of Appeals, partially affirmed and remanded to the trial court Chevron’s appeal of the grant of a writ of mandate halting the expansion of the Chevron refinery in Richmond, California, based on an alleged faulty Environmental Impact Report (“EIR”).

In Communities for a Better Environment (“CBE”) v. City of Richmond, CBE obtained a writ from the trial court halting the replacement and upgrading of certain facilities at Chevron’s refinery.  The project had been approved by the Richmond City Council, but CBE and others argued that the EIR failed to disclose, analyze and mitigate all the potential environmental impacts of the project.  The trial court’s decision was based on its finding that the EIR violated CEQA by failing to provide an adequate project description, failing to consider the whole project, and failing to define mitigation measures for greenhouse gas emissions.  Chevron appealed.


Baselines Under CEQA Must Be Set According To Existing Conditions

Posted by in CEQA on April 14, 2010

In determining whether a project required preparation of an Environmental Impact Report (“EIR”) under the California Environmental Quality Act (“CEQA”), the California Supreme Court recently held that the South Coast Air Quality Management District (“SCAQMD”) improperly used the permitted levels of emissions for an oil refinery’s baseline in calculating emission increases that would result from the refinery’s expansion.  The court held that the SCAQMD should have instead used existing emission levels to determine the baseline.

The lawsuit involved a project proposed by ConocoPhillips to produce ultralow sulfur diesel fuel at a refinery in Wilmington, California.  The SCAQMD, the agency responsible for regulating non-vehicular air pollution in the area, failed to prepare an EIR before approving a permit for the refinery project. The SCAQMD reasoned that ConocoPhillips already had permits to operate the equipment, the refinery was an established use with operations fluctuating over time, and the proposed project did not call for any equipment to exceed this permitted capacity.   Thus, the SCAQMD argued that the baseline for the project should be the maximum permitted operating capacity of the equipment.  When this baseline was applied, no significant emissions increase would result to trigger environmental review. Further, the SCAQMD maintained, failure to use the maximum permitted operating capacity as the baseline would contravene CEQA’s statute of limitations and deprive the permittee of its vested rights.