The California Supreme Court ended 2009 with two CEQA decisions that constitute dodged bullets for lead agencies and provide clarity to project proponents. The following are two issues clarified by the two California Environmental Quality Act (CEQA) decisions.
- What is a “project” under CEQA?
Sunset Sky Ranch Pilots Ass’n v. County of Sacramento, 2009 WL 5064455
On December 28, 2009, the Supreme Court reversed a Court of Appeal decision that had convoluted what constitutes a “project” under CEQA, by clarifying that Sacramento County’s (County) decision not to renew a conditional use permit that had expired on its own terms was not a project under CEQA.
CEQA Section 21080(b)(5) explicitly states that CEQA does not apply to “projects which a public agency rejects or disapproves.” Sunset Sky Ranch Pilots Association (Airport), the permit proponent, argued that the denial of a conditional use permit (CUP) and resulting cessation of airport operations was not exempt from CEQA and was a “project” because it was “an activity directly undertaken by any public agency” pursuant to CEQA Section 21065(a). 2009 WL 5064455 at 3. Distinguishing between activities directly undertaken by a public agency and those merely submitted to an agency for approval, the Supreme Court determined that no environmental review was appropriate for the County’s decision not to renew the permit, as such a denial was statutorily exempt from CEQA review under Section 21080(b)(5). Id. at 4.
The case involved the expiration of a five-year conditional use permit for a privately-owned airport, a nonconforming use. Id. at 1. The permit was issued in 1999 at which time the County reviewed the environmental impacts of permit issuance via a negative declaration. 2009 WL 5064455 at 1. In 2004, the Board of Supervisors denied renewal of the CUP stating in its decision that “[CEQA] does not require that environmental analysis be conducted before an agency denies a project since a denial does not constitute a project for the purposes of CEQA.” Id. at 2. The Airport sued the County, contending that it had failed to comply with CEQA by failing to analyze the environmental impacts associated with closing the airport. Id. The trial court denied relief, however the Court of Appeal reversed on the basis that the CUP denial was a project because it was part of a County plan to enforce its zoning code by closing the airport and transferring pilots elsewhere. Id. The Supreme Court determined that the Court of Appeal erred by deeming the consequences of a project denial to be part of the project itself and that “[i]ts reasoning would effectively abrogate the statutory exemption for projects disapproved by a public agency.” Id. at 4.
- Agency discretion to reject alternatives on policy considerations
California Native Plant Society v. City of Santa Cruz, 177 Cal.App.4th 957
On December 17, 2009, the Supreme Court denied review of the Sixth Appellate District’s California Native Plant Society v. City of Santa Cruz (CNPS) decision, which affirms lead agency discretion in making infeasibility findings regarding project alternatives based upon policy considerations. The Court of Appeal found that the City of Santa Cruz (City) was legally justified in rejecting environmentally superior alternatives as “infeasible” on the basis of its determination that the alternatives were undesirable from a policy standpoint because they failed to achieve what the City regarded as primary project objectives. CNPS, 177 Cal.App.4th at 1000. Among other arguments, the California Native Plant Society (Appellant) contended that the City’s reasons for finding the alternatives infeasible did not meet the factors in CEQA Section 21081(a)(3) and that the City had rejected they alternatives “simply because they did not like them.” Id. at 1001.
The Court of Appeal concluded that, consistent with City of Del Mar v. City of San Diego (Del Mar) (1982) 133 Cal.App.3d 401 and CEQA Section 21061.1, the City’s infeasibility findings were based on appropriate policy considerations. CNPS, 177 Cal.App.4th at 1001. The Court found that although the Appellant may disagree with the “nature of the balance struck” between the numerous competing and conflicting interests at issue, the City acted within its discretion to make the determination consistent with permissible statutory factors. Id. quoting Del Mar, 133 Cal.App.3d at 407. “In this sense, ‘feasibility’ under CEQA encompasses desirability to the extent that desirability is based on a reasonable balancing of the relevant economic, environmental, social, and technological factors.” Id.quoting Del Mar, 133 Cal.App.3d at 417.
The Appellant challenged the City’s approval of a master plan for Arana Gulch, a city-owned property, which addressed public uses and resource management (Project). CNPS, 177 Cal.App.4th at 967. Among the Project’s objectives was to:
“[p]rovide trail connections through Arana Gulch that provide access from adjacent communities to the coastline and the Monterey Bay National Marine Sanctuary Trail. Provide multi-use trail connections that comply with Americans with Disabilities Act (ADA) requirements and provide pedestrian, wheelchair and bicycle access.” Id. at 971.
In approving the Project, the City certified an environmental impact report (EIR) which acknowledged that the Project would have a significant effect on the sensitive habitat of the Santa Cruz tarplant, due to the chosen alignment of a multi-use trail. Id. at 967. However, the City found that overriding considerations warranted approval of the Project. Id.
The EIR acknowledged that loss of tarplant habitat would be greater with multi-use trails, as compared to pedestrian-only trails, and included the consideration of several alternatives such as unpaved trails or the absence of a portion of the trails. CNPS, 177 Cal.App.4th at 972. However, the City determined that all of these alternatives were infeasible, because they did not allow for implementation of a primary project objective. Id. The Court of Appeal concluded that finding all project alternatives to be infeasible does not undermine the validity of the EIR, because alternatives need be only potentially feasible. Id. at 991. The Court also found that, contrary to the Appellant’s assertions, there is no legal requirement that alternatives selected must satisfy every key objective of the project (Id. at 992) and lead agencies have no obligation to consider off-site alternatives in every case (Id. at 994-95).