A Compilation of California Environmental Quality Act (CEQA) Updates and News

Senate Bill 947 (Hollingsworth): Additional Consultation Regarding Transportation Facilities
On September 30, 2008, California Governor Arnold Schwarzenegger signed Senate Bill 947 (Bill), which amends CEQA to require additional notice to and consultation with transportation planning agencies. Under existing law, a lead agency must call at least one scoping meeting for a project “of statewide, regional, or area-wide significance,” Public Resources Code, § 21083.9, subd. (a)(2), and must notify certain public agencies and individuals of such a scoping meeting. Public Resources Code, § 21083.9, subd. (b). For these projects of regional significance, lead agencies also are required to consult with transportation planning agencies and other public agencies regarding the project’s effects on major local arterials, public transit, freeways, highways, and rail transit service. Public Resources Code, § 21092.4, subd. (a).

The Bill amended Public Resources Code § 21083.9 to require that the lead agency also provide notice of scoping meetings held for projects of statewide, regional, or area-wide significance to transportation planning agencies and public agencies that have transportation facilities within their jurisdiction that could be affected by the project. The Bill also amended Public Resources Code § 21092.4 to include effects on overpasses, on-ramps, and off-ramps as issues to be addressed in the lead agency’s required consultation with the transportation planning agency or other public agency.

Text of the Bill is available at: http://www.leginfo.ca.gov/pub/07-08/bill/sen/sb_0901-0950/sb_947_bill_20080930_chaptered.pdf

Denial of a Conditional Use Permit May Be a “Project” Under CEQA
In Sunset Skyranch Pilots Association v. County of Sacramento (No. C055224, 3d Dist. July 2, 2008), the Court of Appeal of the State of California, Third Appellate District (Court of Appeal) recently held that the County Board of Supervisors’ (County) denial of a conditional use permit (CUP) renewal “constitute[d] a CEQA ‘project’ requiring preparation of an initial study.” The case involved an application for renewal of a five-year CUP to operate an airport. The County denied the renewal of the CUP because it had determined that the use would “no longer be compatible with its surroundings.” The County also determined that environmental analysis under CEQA was not required because “agency deni[al] [of] a project … does not constitute a project for purposes of CEQA.”

While the Court of Appeal failed to acknowledge that Public Resources Code § 21080 statutorily exempts from CEQA “[p]rojects which a public agency rejects or disapproves,” Public Resources Code, § 21080, subd. (b)(5), it did acknowledge CEQA Guidelines § 15270, which states that “CEQA does not apply to projects which a public agency rejects or disapproves.”

The Court of Appeal went on to explain that this case did not merely involve denial of a project, but denial of a CUP renewal that would indisputably result in closure of an airport, which the County intended to enforce within 180 days. The Court cited CEQA Guidelines § 15378, subd. (a), which states that a “project” is “the whole of an action, which has a potential for resulting in either a direct or physical change in the environment, or a reasonably foreseeable indirect physical change in the environment,” and went on to conclude that the County’s plan to ensure closure of the airport, and thus transfer of pilots to other airports, was part of the “whole of [the] action” of the CUP denial, which has the potential to result in physical changes to the environment. The Court therefore held that the County’s action in denying the renewal of the CUP constituted a “project” that required preparation of an initial study.

The Supreme Court of California has granted review of this case to decide 1) whether a denial of an application to renew a condition use permit is a “project” subject to CEQA, and 2) if the denial of a CUP is a “project,” whether it is, nonetheless, exempt from CEQA.

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If you have any questions about this issue or would like to discuss these topics further, please contact your Foley attorney or:

S. Wayne Rosenbaum
San Diego, California
619.685.6413
[email protected]

Elizabeth A. Cason
San Diego, California
619.685.4634
[email protected]

Heidi K. Vonblum, Law Clerk
San Diego, California
619.685.4637
[email protected]