Yes, it's been 37 years since Gov. Ronald Reagan signed the California Environmental Quality Act (CEQA) into law. But we're still arguing about the statute's most basic definitions.
The California Supreme Court will get another crack at a very basic question — what constitutes a "project" that is subject to CEQA — in a case with the memorable name Save Tara v. City of West Hollywood (No. S151402).
Surprisingly, the Cal Supremes have emerged as a force for strict CEQA enforcement. However, the latest case may offer the court an opportunity to swing the other way.
The specific question in the West Hollywood case is this: Does the agreement between the city and the developer that describes the proposal in detail — but which expressly withholds any commitment to a definite course of action and is conditioned upon CEQA compliance — constitute "approval" of a "project" necessitating environmental review?
The case involves a Colonial revival mansion called Laurel Place, which the previous owner donated to the city. Preservationists want to protect the approximately 90-year-old mansion as-is. The city wants to restore Laurel Place for apartments and build a U-shaped apartment building around the mansion — all to provide housing for poor senior citizens.
A state appellate court ruled 2-1 that West Hollywood should have completed an environmental impact report before entering into a conditional agreement in 2004 with a nonprofit housing developer for the sale of Laurel Place (LINK). The city argued that the agreement was contingent, in part, on completion of environmental review — and the city certified an EIR for the 28-unit project last year. But the court said the city waited too long to commence the CEQA process.
The ruling appeared to conflict with a decision issued only a few months earlier in which a different appellate panel ruled that the McCloud Community Service District's conditional agreement with Nestlé for construction of a water bottling plant was not yet a project under CEQA.
The California Supreme Court accepted only two CEQA cases in the 10 years from 1993 to 2003. Since then, the court has accepted five cases. In two rulings thus far, the court has hewed a strict CEQA line. Last year, the court said California State University must mitigate off-campus impacts of development at the Monterey Bay campus. And earlier this year, the court rejected a water analysis for a 20,000-unit development near Sacramento. By July 2, the court is scheduled to rule on a whether the Solano County Airport Land Use Commission should have undertaken environmental review of a compatibility plan for areas surrounding Travis Air Force Base — a ruling that will likely call for an environmental analysis. (The other pending case involves the EIR for the Cal-Fed Bay Delta project.)
The West Hollywood case invites the court to tilt the other direction. A number of CEQA experts said the appellate court went too far and noted that the decision in effect invalidated the 2006 EIR, even though no one sued over that document and no court ever reviewed it. Of course, the other side argues that the city essentially committed itself when it approved the conditional agreement, so any future EIR would amount to after-the-fact rationalization, which CEQA prohibits.
- Paul Shigley
