California Environmental Quality Act PART 2: CEQA Case Law

Transcription

1 California Environmental Quality Act PART 2: CEQA Case Law July 1, 2014: 12:00 p.m. California Preservation Foundation Webinar Susan Brandt-Hawley, Esq. Brandt-Hawley Law Group Deborah M. Rosenthal, AICP, Esq. Sheppard Mullin Richter & Hampton, LLP # Sheppard Mullin Richter & Hampton LLP 2014

2 What is a Project? Ministerial Demolition / Building Permits Prentiss v. City of South Pasadena (1993) 15 Cal.App.4 th 85 Friends of Juana Briones House v. City of Palo Alto (2010) 190 Cal.App.4 th 286 2

3 What is a Project? (cont.) Discretionary Demolition/Building Permits San Diego Trust & Savings Bank v. Friends of Gill (1981) 121 Cal.App.3d 203 Melville Klauber House 3

4 What is a Project? (cont.) Pre-commitment to Project Save Tara v. City of West Hollywood (2008) 45 Cal.4 th 116 Cedar Fair, LP v. City of Santa Clara (2011) 194 Cal.App.4 th 1150 City of Irvine v. City of Orange (2013) 221 Cal.App.4 th 846 Save Tara 4

5 What is a Project? (cont.) Project As A Whole Must Be Considered Friends of the Orinda Theatre v. County of Contra Costa (1986) 182 Cal.App.3d 1145 Friends of Juana Briones House v. City of Palo Alto (2010) 190 Cal.App.4 th 286 5

6 Is the Project Exempt? Consistent with Specific Plan Concerned Dublin Citizens v. City of Dublin (2013) 214 Cal.App.4 th 1301 Infill/Single Family Valley Advocates v. City of Fresno (2008) 160 Cal.App.4 th

7 Is the Project Exempt? (cont.) Unusual circumstances Berkeley Hillside Preservation v. City of Berkeley (2012) 203 Cal.App. 4 th 656 (review granted) 2707 Rose Street 7

8 Significant Adverse Impacts Fair argument Negative Declaration Architectural Heritage Association v. County of Monterey (2004) 122 Cal.App

9 Significant Adverse Impacts (cont.) Substantial evidence EIR Substantial evidence Subsequent documentation Citizens for a Megaplex-Free Alameda v. City of Alameda (2007) 149 Cal.App.4 th 91 9

10 What is an Historic Resource? Cultural, architectural or historic Architectural Heritage Association v. County of Monterey (2004) 122 Cal.App Preparation of an EIR was required although the Old Jail was not yet listed on any historic register. The record contained a fair argument that it qualified as an historic resource. 10

11 What is an Historic Resource? Obligation to investigate Valley Advocates v. City of Fresno (2008) 160 Cal.App.4 th 1039 In overturning approval of demolition of Cutting Flats via a categorical exemption, Court ruled the fair argument standard generally does not apply to initial question of whether a resource should be considered historic for CEQA purposes. Requires agencies to determine historic status even for sites previously considered for and denied register listing. 11

12 Are Impacts Clearly Mitigated? Architectural Heritage Association v. County of Monterey (2004) 122 Cal.App Old Monterey Jail 12

13 Are Impacts Clearly Mitigated? Demolition would have a significant impact. Mitigation would not reduce impacts to insignificance. "As drawing a chalk mark around a dead body is not mitigation, so archival documentation cannot normally reduce destruction of an historic resource to an insignificant level.

14 Are Impacts Clearly Mitigated? Mitigating conditions are not mere expressions of hope. Lincoln Place Tenants Assoc. v. City of LA (2005) 130 Cal.App.4 th 1491

15 Feasible Mitigation Measures League for Protection of Oakland s Architectural and Historic Resources v. City of Oakland (1997) 52 Cal.App.4th 896 Documentation of the historical features of the building and exhibition of a plaque do not reasonable begin to alleviate the impacts of its destruction. A large historical structure, once demolished, normally cannot be adequately replaced by reports and commemorative markers. Montgomery Ward The Montgomery Ward building was not listed on any historic register but there was a fair argument that it was an historical resource. 15

16 Adequate and Preferred Mitigation Measures? Architectural Heritage Association v. County of Monterey (2004) 122 Cal.App Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4 th 48 Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4 th 455 Old Monterey Jail Ballona Wetlands 16

17 Feasible Alternatives to Avoid or Reduce Impacts Factual, financial and legal alternatives Preservation Action Council v. City of San Jose (2006) 141 Cal.App.4th 1336 IBM Building 25 17

18 Feasible Alternatives to Avoid or Reduce Impacts The City failed to conduct independent analysis of the validity of Lowe s claim that the reduced size alternative is infeasible. Demolition was approved by the City without adequate consideration of feasible alternatives to demolition. 18

19 Feasible Alternatives to Avoid or Reduce Impacts Factual, financial and legal alternatives Uphold Our Heritage v. City of Woodside (2007) 147 Cal.App.4 th 587 Jackling House 19

20 Feasible Alternatives to Avoid or Reduce Impacts No substantial evidence supported the Town s finding that a rehabilitation alternative for the Jackling House was infeasible. 20

21 Feasible Alternatives to Avoid or Reduce Impacts The fact that [Steve] Jobs does not wish to proceed with the rehabilitation does not make that alternative legally infeasible. A statement of overriding considerations [may allow project approval] only when the measures necessary to mitigate or avoid those effects have properly been found to be infeasible. 21

22 Feasible Alternatives to Avoid or Reduce Impacts Flanders Foundation v. City of Carmel (2012) 202 Cal.App.4 th 603 EIR inadequately responded to proposed alternative 22

23 Substantial Evidence Facts and expert opinion Architectural Heritage Association v. County of Monterey (2004) 122 Cal.App

24 Findings Economic Feasibility San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4 th

25 Findings Economic Feasibility SPRAWDEF v. San Francisco BCDC (Cal.App. 5/28/14) 25

26 Findings Alternatives South County Citizens for Smart Growth v. County of Nevada (2013) 221 Cal.App.4 th

27 Standing and Administrative Exhaustion administrative hearings in court 27

28 Ballot Initiatives City initiative Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4 th

29 Ballot Initiatives Public initiative Tuolumne Jobs & Small Business Alliance v. Superior Court (2013) 210 Cal.App.4 th 1006 (review granted) 29

30 QUESTIONS? Susan Brandt-Hawley, Esq. Brandt-Hawley Law Group Post Office Box Arnold Drive Glen Ellen, California Deborah M. Rosenthal, AICP, Esq. Sheppard Mullin Richter & Hampton, LLP 650 Town Center Drive, 4 th Floor Costa Mesa, CA (714) drosenthal@sheppardmullin.com 30