Real Estate and Land Use

Change of Heart—Court of Appeal Reverses Opinion in Bowman v. California Coastal Commission

Author: Roger Grable

Why it matters: The court in Bowman originally held that a permit condition could not be modified or deleted by a second permit that included the same project even if the first permit had expired. In reversing this holding, the court relied on a correction of the facts to hold that collateral estoppel is not applicable in this case.

Facts: An applicant applied for a Coastal Development Permit (CDP) to develop a parcel of land in San Luis Obispo County, which included a mile of shoreline. The CDP was approved by the County, acting as the Coastal Act Permitting Authority. One condition of the CDP was a requirement that the applicant dedicate a public coastal access easement. The applicant did not appeal the issuance of the CDP or the condition of approval. After the permit became final, the applicant applied for a second CDP (CDP-2), requesting the removal of the easement condition. The County approved CDP-2, including the removal of the coastal access condition. The County approval was appealed to the California Coastal Commission. The Commission determined that the easement condition was permanent and binding on the applicant.

The Decision: The court in Bowman reversed its earlier holding by finding that contrary to its earlier understanding, the work performed by the applicant occurred before the permit was issued and therefor was not performed in reliance on the permit. As a result, when the permit expired, the condition expired as well. The court did reaffirm the principle relied on in its earlier decision that a party who is dissatisfied with a quasi-judicial administrative decision must attack it directly by appealing the matter and, if unsuccessful, by filing a writ of mandamus. Under the new fact situation, the court found that this result would be unjust.

In arriving at this conclusion, the court also considered the validity of the condition, which it had declined to do in its earlier opinion. Importantly, the court found that the condition amounted to an unconstitutional taking, lacking the “essential nexus” required by law. The court concluded that this also was a factor in concluding that collateral estoppel would result in an unjust result in this case.

As before, a petition for review by the California Supreme Court is likely. If review is accepted, it will likely be a significant decision no matter how the Supreme Court rules.

Practice Pointer: The suggested responses to this decision are largely the same as with the court’s earlier ruling.

  • If it appears that a final decision-making body intends to impose a condition that is not acceptable to an applicant, the applicant should consider withdrawing the application before a final vote is taken.
  • If the permit becomes final and the applicant is unwilling to accept the condition, the applicant should advise the public agency of that fact in writing and should undertake no activities authorized by the permit, because any such activities may be deemed to be acceptance of the permit and the condition.
  • The applicant should file a writ of mandate challenging the condition, as the Bowman court held. It should be noted that there is a very short limitation period for filing challenges to land use decisions. In most cases it is 90 days, during which the petition must not only be filed but also served.
  • The one new factor is the potential opportunity to challenge a condition that is unlawful even if the applicant performed work in reliance on the permit.

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Approval of a Tentative Map Without a Specific Development Plan Is a CEQA Project

(Rominger v. County of Colusa)

Author: Kristina Lawson

Why it matters: In this decision, the court held that approval of a tentative map was a “project” for the purposes of CEQA even though it did not include any specific plans for development. The opinion includes detailed application of the fair argument standard to each of the areas in which the petitioners argued significant impacts may occur and clarifies that vague criticisms of a mitigated negative declaration and its evidentiary support are insufficient to carry a petitioner’s burden to affirmatively point to evidence of potential significant impacts. The court ultimately concluded that the County prejudicially abused its discretion when it failed to prepare an EIR. The petitioners adequately showed there was substantial evidence in the record to support a fair argument that the subdivision may have a significant unmitigated impact in the area of traffic.

Facts: In 2009, a project applicant sought approval of a tentative subdivision map to divide four parcels located in Colusa County. At the time, the existing uses for the property were agricultural, light industrial, and open space, and the applicant intended for the existing uses to continue. In June 2010, the County prepared an initial study and mitigated negative declaration. During the public comment period, the petitioners commented that an EIR was necessary, in part, to analyze the potential impacts based on the most reasonably foreseeable significant impacts. The County thereafter prepared a revised initial study analyzing agriculturally related industrial development and a mitigated negative declaration. The related staff report stated that because the future development scenario was presented for analysis only, and was not currently proposed, the analysis completed by the County actually was not required by CEQA. Although a range of non-agriculture industrial uses was permitted in the applicable zone, the County reasoned that the establishment of those uses was considered unlikely due to the geographical location of Colusa County, the building permit history and pattern, the location of natural resources, and market locations. Thus the reasonable future development scenario was agriculturally related industrial development.

The Romingers filed a petition for writ of mandate arguing that the County violated CEQA by failing to prepare an EIR. The trial court rejected the petition, concluding that approval of the tentative map was not a “project” for the purposes of CEQA. The Romingers appealed.

Decision: At the outset, the court rejected the petitioners’ argument that the County was barred from asserting that the proposed subdivision was not a CEQA project because it had proceeded under CEQA by preparing an initial study and mitigated negative declaration. Notwithstanding its preparation of a mitigated negative declaration, the County was entitled to argue it had gone above and beyond the requirements of the law.

Next the court concluded the petitioners were correct that under subdivision (a) of Section 21080, which specifically provides that CEQA applies to the approval of tentative subdivision maps, the approval of a tentative subdivision map is categorically a CEQA project. The court also concluded that the “common sense” exemption (where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment) did not apply because the County failed to show as a factual matter that there was no possibility that the approval of the subdivision may have resulted in a significant effect on the environment, i.e., that the creation of the smaller parcels would not lead to the development of those parcels and to resulting significant environmental effects.

With regard to procedural errors, the court concluded that although the County abused its discretion in failing to provide a full 30-day public review period for the mitigated negative declaration, as required by CEQA, no prejudice had been shown. Therefore, the noncompliance provided no basis for overturning the County’s decision.

In terms of the adequacy of the mitigated negative declaration itself, the court concluded that it did not fail to analyze the “whole” of the project, as it analyzed the reasonable scenario that agriculturally related industrial development would occur on the subdivided property. The petitioners failed to show that any unanalyzed uses were a “reasonably foreseeable consequence” of the subdivision and that the future action would be significant in that it would likely change the scope or nature of the initial project or its environmental effects (citing Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344, 1360).

In applying the fair argument standard to each of the areas challenged by the petitioners—(1) agriculture, (2) traffic, (3) odor, (4) noise, (5) air quality, (6) greenhouse gas emissions, and (7) water supply, the court repeatedly explained that it is not enough to attack the evidentiary basis for a lead agency’s conclusion that a project would not have a significant impact without identifying or providing evidence to support a fair argument to the contrary. Pointing out flaws in a mitigated negative declaration is insufficient to meet a petitioner’s burden to affirmatively point to evidence of potential significant impacts.

Ultimately, the court concluded the petitioners adequately showed there was substantial evidence in the record that the subdivision may have a significant effect in the sole area of traffic and, on that basis only, reversed and remanded for the preparation of an EIR. Evidence in the record included a traffic engineer’s comment letter suggesting the County relied on unrealistically low trip generation estimates and citing specific evidence, including the proximity of a major interstate and the potential for the light-industrial uses to be redeveloped as more traffic-intensive uses, to support that the County should have used the general trip generation characteristics from categories in the authoritative trip generation source reference Trip Generation, 8th edition. Based on these trip generation numbers, the project could potentially have a significant traffic impact on an intersection of a County road and nearby highway. The County’s pointing to substantial evidence supporting a contrary conclusion was insufficient to defeat the fair argument.

Practice Pointers:

  • When relying on an MND, be aware of the pitfalls. Here, the court found the MND inadequate on one basis alone—traffic. Traffic and transportation-related impacts are highly technical and often subject to expert scrutiny. All traffic analyses that become part of the CEQA record should be carefully reviewed by lead agency staff and the applicant to ensure accuracy.
  • Where critical expert comments have been received regarding a traffic/transportation impacts analysis, revision of the environmental document, and release for additional public comment, should be considered.

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