Substance Over Form—A Refreshing Application of CEQA Analysis
Author: Christopher Burt
City of Irvine v. County of Orange (2015) 283 Cal.App.4th 526
Why It Matters: The Court of Appeal in City of Irvine v. County of Orange elaborated upon the rules dictating when a supplemental EIR, as opposed to a subsequent EIR, analysis is appropriate, concluding that substance controls over title when deciding if the correct level of analysis was utilized. The court also reaffirmed its previous holdings that in determining the adequacy of responses to comments, this component of the EIR process should not be used as a vehicle for abuse of the process by commenters. In this case, the court concluded that the comments were more litigious than substantive and therefore did not merit a detailed response.
Facts: The court's opinion represents what is likely the conclusion of the City of Irvine's multiple challenges to the proposed expansion of the James A. Musick Jail Facility in the County of Orange, but immediately adjacent to the City's boundaries. The proposed expansion project was originally planned and analyzed in an EIR that was prepared and certified in 1996, but the project languished without moving forward. Finally, after years of inactivity, the County prepared and released a supplement to the EIR in 2012 (the SEIR). The document, labeled a Supplemental EIR, analyzed changes to the proposed project since certification of the original EIR.
The City challenged the SEIR, alleging it was inadequate because (1) it should have been a subsequent EIR, (2) the traffic analysis was inappropriate, (3) the County improperly determined that the loss of agricultural land could not be mitigated, and (4) the County's responses to comments were inadequate.
The Decision: The court upheld the use of a supplemental EIR, explaining that a lead agency has discretion to determine whether project changes constitute only "minor additions or changes" (CEQA Guidelines § 15162) warranting only supplemental analysis. According to the court, the choice is "a discretionary one with the lead agency, thus tested under a reasonableness standard" and, in reviewing such decisions, courts should "look to the substance of the EIR, not its nominal title." Here, the project, the expansion of the jail facility, remained largely the same, and the only significant change to the project was changing the designation of "22 acres from direct agricultural use" to open space. This change, the court held, was properly evaluated using supplemental analysis.
Irvine next argued that the traffic analysis was inadequate because it evaluated traffic at two baselines—interim year (2014) and project completion (2030)—when the true interim year was 2018. Because the interim year baseline was incorrect, Irvine argued that the project description was fatally unstable. The court rejected this contention, concluding that the project description was appropriate and stable. In the court's view, Irvine's argument fundamentally confused the "need for a stable project description with the task of ascertaining the interim impacts of project construction as that construction takes place—on a timeline that cannot be predicted with certainty." Here, the SEIR presented detailed traffic analyses on levels of service at intersections for what was, substantively, a year reflecting existing conditions. Any discrepancies "are functions of delays in the project, and those relate to traffic—by definition a fluid condition—and not the project itself." In any case, the court concluded that any failure to update the traffic analysis was nonprejudicial under Neighbors for Smart Rail v. Exposition Metro Line Construction Authority's ((2013) 57 Cal.4th 439) harmless error test because the public and decision makers were given not just one, but two sets of comparison years (the latter of which predicted slightly less traffic than in 2014).
The issue regarding the loss of agricultural land concerned the SEIR's designation of 22 acres, originally allocated for farming in the 1996 EIR, as open space. With respect to the mitigation of loss of agricultural land, Irvine suggested numerous mitigation measures to lessen the loss of farm land, including conservation easements, transfer of development rights, and a right-to-farm ordinance. The County rejected all the measures. The court found substantial evidence supporting rejection, based primarily on the high cost of land in the County ($2 million per acre) that made agriculture cost-prohibitive.
Finally, Irvine alleged that the SEIR failed to appropriately respond to comments it had submitted. The court reviewed the comments and responses acknowledging that there is a "know-it-when-I-see-it quality to the" adequacy of responses to comments. The court then turned to the comments. The court concluded that "[T]o call all 88 items 'comments' would be a misnomer. Some are mere argumentative assertions, obviously intended to preserve an issue for litigation. Some are argumentative assertions followed by a demand for a change in the EIR. Some are the functional equivalent of one litigant's requests for production of documents to another. Some appear to be classic litigation interrogatories. And some are actually genuine questions. To determine the adequacy of the responses, the court looked to CEQA Guidelines Section 15088, which requires a lead agency to (1) provide written responses to comments on environmental issues and (2) to respond in good faith and detail to significant environmental issues and relevant case law. According to the court, the County complied with this mandate by making responses adequate to the comment and, in any event, Irvine had failed to demonstrate prejudice in the form of some inadequacy in a response. Finally, the court noted that this was a situation that bordered on abuse of the comment-and-response process and that CEQA Guidelines Section 15088 does not permit a project opponent "to use the comment-and-response process to wear down a lead agency, or delay a project, by the simple expedient of filing an onerous series of demands for information and setting up a series of hoops for the lead agency to jump through."
Practice Pointers
- When deciding whether to conduct supplemental or subsequent analysis, focus on the change to the project and make sure substantial evidence supports your conclusion regardless of what label is proposed to be applied.
- A baseline traffic analysis that uses an interim year and a project completion year may be valid under Neighbors for Smart Rail so long as it provides the public and decision makers with adequate information given the circumstances.
- Courts ultimately apply a "know-it-when-I-see-it" standard when determining the adequacy of responses to comments, but will closely scrutinize the form and substance of the comments when evaluating adequacy.
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Subdividing a Mobile Home Park? Not so Fast.
Author: Sean Matsler
Carson Harbor Village v. City of Carson (2015) 239 Cal.App.4th 56
Why It Matters: In a reversal of its own 2010 decision, the Carson Harbor Village Court of Appeal affirmed a local agency's ability to rely upon its adopted general plan when considering a proposed mobile home park conversion.
Facts: Carson Harbor Village is a mobile home park in the City of Carson consisting of 420 rental spaces on 70 acres of land, including 17 acres of federally regulated and state-regulated wetlands. These 17 acres are the only open space area within the City. In 2007, the City rejected the park's application to convert the park from rental spaces to a subdivision of individually owned lots based, in part, on that subdivision's inconsistency with the housing and open space elements of the City's general plan.
The park owner challenged the City's rejection of the conversion, and in 2008 the trial court determined that the City could not deny the subdivision application based on its inconsistency with its general plan. In an unpublished decision, the Court of Appeal affirmed the trial court's decision in Carson Harbor Vill., Ltd. v. City of Carson (2015) 239 Cal.App.4th 56.
On remand, the City subsequently held new public hearings in 2011 and 2012, and again rejected the mobile home park conversion application. This second denial was again based, in part, on the proposed subdivision's inconsistency with the general plan's housing and open space elements. The park owners filed a second lawsuit, and the trial court again concluded that inconsistency with a local agency's general plan was not a proper ground to deny the application and, even so, that there was no evidence in the record supporting the City's conclusion that the park's proposal was inconsistent with the City's general plan.
The Decision: The legal issue before the court was whether the City's scope of review on mobile home conversions was effectively limited to the four corners of Government Code Section 66427.5, which sets forth the steps that a mobile home park's owner must go through in order to avoid the economic displacement of existing tenants when converting from rental to resident ownership (e.g., obtain a survey of tenant support for the proposed subdivision pursuant to an agreement with any resident homeowners' association). In concluding that the city's scope was not so limited, the court was explicit in relying on the supreme court's recent decision in Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012) 55 Cal.4th 783.
In Pacific Palisades Bowl, the supreme court concluded that the Coastal Act and Mello Act were based on important statewide policies and that the provisions of Section 66457.5 should not be read to preclude their application to mobile home conversions, but that all of the sections should be harmonized. Although the Pacific Palisades Bowl case did not address the application of the Subdivision Map Act to Section 66427.5, the court in Carson Harbor Village read into that decision an "invitation" by the supreme court to apply other state laws (e.g., the Coastal Act, Mello Act, and Subdivision Map Act) to the mobile home conversion process set forth in Section 66427.5. The Carson Harbor Village court found that, just as the Coastal Act and Mello Act could apply to mobile home park conversions, so too could the Subdivision Map Act's general plan consistency requirement. It concluded that substantial evidence supported the city's finding of inconsistency with its general plan open space element as the basis for rejecting the proposed mobile home park conversion.
Practice Pointer: Given the scarcity of development-scale assembled land in California, the practice of converting mobile home parks to individually owned residential communities is likely to continue. Based on Carson Harbor Village, would-be converters need to consider general plan consistency as a part of their applications. As Carson Harbor Village shows us, general plan inconsistency can be relied upon by the city to reject a proposed conversion.
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Substantial Compliance With Brown Act Upheld
Author: Brandon D. Young
Castaic Lake Water Agency v. Newhall County Water District (2015) 238 Cal.App.4th 1196
Why It Matters: In an unreported decision in the continuing legal skirmishes involving development in the Santa Clarita Valley, the court upheld a water district's public meeting notice even though it referenced an incorrect section of the Brown Act, California's open meeting law. Although the case cannot be cited as legal precedent, it provides a perspective into at least one court's reasoning that perfection is not always required—substantial compliance was sufficient, and that courts will not always fault an agency for a technical error so long as the goal of public information and disclosure was met.
Facts: On March 8, 2013, the Newhall Water District (Newhall) posted a "Notice and Agenda of Regular Meeting of the Board of Directors of Newhall County Water District." The Notice/Agenda advised the public that the Newhall Board planned to hold a regular meeting four days later. Specifically, the Notice/Agenda contained an item providing "CLOSED SESSION [¶] 1. Conference with Legal Counsel pursuant to Government Code Section 54956.9(c) to discuss potential litigations (2 cases)." A meeting followed on March 14, 2013, and the Newhall Board authorized the initiation of a lawsuit against Castaic Lake Water Agency (Castaic), a public water wholesaler. The lawsuit was filed April 25, 2013.
On June 21, 2013, Castaic objected to the March 2013 Notice/Agenda contending, among other objections, that the Notice/Agenda erroneously cited subdivision (c) of Government Code Section 54956.9 instead of subdivision (d)(4), and therefore failed to properly disclose an open meeting item to be discussed in closed session. Castaic demanded that Newhall cure or correct the violations by dismissing its lawsuit. Rather than dismiss the lawsuit, on July 3, 2013, Newhall took efforts to "cure" the alleged defects by renoticing a closed session to discuss its litigation with Castaic, and to hold a vote to "ratify" the lawsuit.
In July 2013, Castaic filed a petition for writ of mandate and complaint against Newhall alleging violations of the Brown Act. Castaic sought a determination that the first-filed lawsuit by Newhall was "null and void." Newhall promptly filed a motion to dismiss, contending that its decision to initiate the lawsuit was a valid action under the Brown Act because it subsequently cured or corrected any alleged failure to give proper notice by placing the matter on a later agenda and allowed public comment.
The trial court ruled in favor of Newhall, noting that "[e]ven where a plaintiff has satisfied the threshold procedural requirements to set aside an agency's action, Brown Act violations will not necessarily invalidate a decision; the plaintiff must show prejudice." Castaic appealed.
The Decision: The issue before the Court of Appeal was whether Newhall's failure to include accurate information on its March 2013 Notice/Agenda, i.e., citing subdivision (c) of Government Code Section 54956.9 instead of subdivision (d)(4), violated the Brown Act. Applying substantial compliance as the "governing test," the court found that the March 2013 Agenda "substantially complied with the Brown Act, making it unnecessary to address whether Newhall properly cured and corrected the purported violation."
The court reasoned that so long as an agency takes "reasonably effective efforts to notify interested parties of a public meeting," the objectives of the Brown Act can be satisfied. In rendering its decision, the court signaled a rejection of "hypertechnical" interpretations of the Brown Act that elevate "form over substance." Since the public was alerted to Newhall's closed session meeting to discuss litigation, irrespective of the variance between the given Notice/Agenda and the statutorily prescribed notice, the given notice was in substantial compliance.
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