A case was recently decided in the fifth district of the California Court of Appeal that focused on the question of whether or not a local agency (here Madera County) is required to conform to guidelines prepared by a State agency in the preparation of an Environmental Impact Report (EIR): Association of Irritated Residents v. County of Madera (2003). The landowner, Hooker, applied for a Conditional Use Permit to construct a dairy on a 1,925-acre site southeast of Chowchilla, CA. The development plan called for the use of 8.2% of the site for the dairy (including several buildings), with the balance of the site remaining in the production of alfalfa and corn silage/oat silage. The proposal was consistent with zoning. The County conducted an initial study, and concluded that the project, as mitigated, would have a less than significant environmental impact. The County Planning Commission approved a mitigated negative declaration. An environmental advocacy group, the Center on Race, Poverty and the Environment successfully appealed to the County. The Board ordered an EIR. The EIR was prepared, and the final EIR was certified.
Appellants motioned for issuance of a stay or alternately a preliminary injunction in an attempt to halt the dairy operation. The motion was denied. The dairy began operating. Appellants filed the petition (writ of mandate) within the statutory period, challenging the adequacy of the EIR.
APPELLANTS ARGUMENT:
A qualified biologist to was retained to conduct a “reconnaissance level” biological field survey by driving the roads and walking a portion of the fields to identify the potential presence of a special status animal or plant species or their sign. Prior to the study, the biologist consulted the Natural Diversity Database that is maintained by the Department of Fish and Game. The database identified several species of animals and 2 species of plants of special status found in the area near the site. In particular, the Data Base refers to a sighting of a San Joaquin Kit Fox at a location 8 miles from the site. The biological report states that no special status animal or plant species were found on the site, and that the site does not support habitat for any special status species. The absence of the Kit Fox was specifically noted. In conclusion, the report stated, “no significant impacts to threatened or endangered species are expected as a result of this project”. This report was included in the EIR.
The State Department of Fish and Game issued guidelines stating that all surveys designed to determine the presence of state listed species should employ a “protocol level” biological study (more thorough analysis). The appellant contended that the County was required to conform to the State DFG guidelines. The U.S. Fish and Wildlife service commented on the EIR, stating that the development of the dairy would result in “the take of at least 158 acres of Kit Fox habitat”. The appellant argued that the reconnaissance level study did not constitute substantial evidence, and thus the EIR was insufficient and a violation of the California Environmental Quality Act.
COURT HOLDING:
This court cited the Supreme Court of California: “The wisdom of approving this or any other development project, a delicate task which requires a balancing of interests, is necessarily left to the sound discretion of the local officials and their constituents who are responsible for such decisions. The law as we interpret and apply it simply requires that those decisions be informed, and therefore balanced. Concurrently, we caution that rules regulating the protection of the environment must not be subverted into an instrument for the oppression and delay of social, economic, or recreational development and advancement” (Goleta Valley v. Board of Supervisors).
The court held that only the lead agency (here the County) had the legal authority to set forth the methodology to be used in the preparation of an EIR. The County was not required to conform to the State Department of Fish and Game’s guidelines. The court found no abuse of discretion by the County and denied the petition for writ of mandate.
APPLICATION:
REAL ESTATE USERS/DEVELOPERS:
This case throws down the gauntlet regarding the impropriety of non-local agencies directing local agencies (Cities and Counties) in the business of conformance with the California Environmental Quality Act (CEQA). If the black and white language of CEQA was not clear enough, the cited case law places a final stamp of prohibition regarding such outside authority. The direct regulation of a development by an outside agency such as the California Coastal Commission properly occurs, however the Coastal commission or other non-local agency may not legally determine the methodology that the local agency will use regarding compliance with CEQA.
Counsel representing real estate developers are thus empowered to hold the feet of Cities and Counties to the fire by demanding that outside agencies not be permitted to dictate the manner in which local agencies conform with CEQA. If a City or County were to permit such outside agency direction, this would give rise to the potential for a developer to file a petition for writ of mandate in a Superior Court or Court of Appeal asking the Court to overturn the action.
It is critical for the attorney representing a developer to work closely with local planning officials throughout the review process, and assure that improper outside agency demands are not an issue. A proper effort by your attorney during the local process should keep procedures on a sound legal course, and prevent the need for subsequent legal action. It should be recognized that a non-local agency is permitted to exert limited influence over local decision-makers both by verbal comment at public meetings as well as by letter. Such an agency may also legally meet and confer with local planning officials to inquire regarding a proposed project, as any citizen could. This limited outside influence, however, must remain at the same level as comment by any individual citizen. Ultimately the City or County may not legally acquiesce to demands from an outside agency regarding the methodology of CEQA compliance. Decisions by a City or County agency regarding compliance methodology must be left to the sound discretion of that local agency alone.
ENVIRONMENTAL ADVOCATES:
In California, a citizen or group who appears and takes part in public hearings regarding the subject project is most easily accorded standing (the legal right) to challenge the administrative action. California will also generally permit standing as a taxpayer, as well as by other theories. It is critical, however, that you have a valid cause of action. The case outlined here tells us, from this point on, to avoid a waste of time, energy and money in attempting to compel the dictation to local agencies by outside agencies in the area of CEQA conformance. Between the subject case and the Goleta Valley case, this area of law is now settled.
Concentrate on legally proper environmental advocacy. The statement made by the California Supreme Court in the Goleta Valley case which was cited in the Irritated Citizens case (see above), constitutes a stern rebuke to improper environmental advocacy. You are permitted to influence local decision-making on your own accord through comment at public meetings. Furthermore, direct legal actions may be brought against a local agency if it failed to act in conformance with CEQA. Be aware that the statutory period in which to file actions based on CEQA are very short; consult your attorney. Our laws provide great protections for the environment, particularly in California. Act in conformance with these laws and you will be successful in your advocacy in the immediate sense, and you will enhance the reputation of environmental advocacy overall.
