Opinion: The California Environmental Quality Act (CEQA), subtle features 

10
832

By Roger Bütow

The California Environmental Quality Act, or CEQA (pronounced SEE-QWAH) was created by the California State Legislature in 1970. Subsequent revisions over the decades have occurred mainly due to litigious challenges or amendments by legislators.  

Every California governor since 1983 has called for reform, but none has succeeded yet. It can be a project applicant’s best friend or worst nightmare, hence the ongoing confrontations since inception. 

Two years after launch, it was amended. In 1972, California became the only State that interpreted a “public project” as ANY development that needed approval by a governmental, local lead agency. [1] 

This explains why projects with their potential environmental consequences, especially those in need of potentially significant adverse impact mitigation, are overseen by proximate government agencies. 

Applicants, having prolonged, private access to local agency staff well in advance, have advocacy advantages before their project is even publicly announced. CEQA veterans know that initially, the playing field isn’t really level. 

Initially, per law, the project’s CEQA packet is transmitted to the Governor’s Office of Planning & Research (OPR); Notice of Intent (NOI) is also posted at the State Clearing House (SCH) website and archives can be referenced. [2] 

The project’s arc is determined at staff planning levels. Of the greatest importance is CEQA’s “Initial Study Checklist,” where the project is first reviewed and assessed, triaged as it were.  

Proffered mitigations (making the project’s impacts nil or less), coupled with CEQA’s “Mandatory Findings of Significance” that exhaustively list the requisite public trust and/or regulatory certifications, must be offered. 

If the lead agency implements the goals and objectives of CEQA, i.e., takes the “gauntlet approach,” applicants become vulnerable to subsequent objections.  

Meanwhile, applicants usually want to be inured, basically safe harbor sheltered via lead agency initial analytical assessments. [3] 

Skeptics who either want a project DOA or feel the mitigations are inadequate, follow the guaranteed path to make their outcries noted and become part of the project’s public record journey. 

Stakeholders, submitting concerns in writing and, if physically possible, attending formal hearings, should also be prepared to provide oral testimony. Hand-delivered multiple copies at these hearings help.  

If an agency records their meetings and archives them, all the better. Together, these are important tactical tools. 

If appealed to public agencies with oversight powers or legally challenged in courtrooms, stakeholder’s rights might be limited to only those project shortcomings/mitigations objected to previously. 

Another invaluable element for objectors is the “Fair Argument Standard,” which helps level the discourse playing field during the CEQA approval and possible appellate processes. 

“The fair argument standard means that if a “fair argument” can be made that a project may have a significant effect on the environment, an EIR shall be prepared even though there may be other substantial evidence that the project will not have a significant effect (CEQA Guidelines § 15064(f)(1).”  

To acquire a much higher-level, refined education, extremely important if as a stakeholder you’re considering engagement and participation in the CEQ process, please go to this link. Better you learn to fish than be given fish. [4] 

To my knowledge, never discussed in Laguna’s preservation and protection community are the prohibitions and constraints regarding “patterns of development,” including “piecemeal” or “sequential” filings of multiple or complex, chronologically phased projects.  

Individually, projects submitted might appear relatively benign. If that project is composed of several phased parts, individually, they might pass the mitigation smell test muster but ultimately be found unworthy of final approval.  

Such “Programmatic” or the higher, more in-depth review level “Master Environmental Impact Reports” (MEIRs) are often contentious. [5] 

“Patterns Of Development” guidelines, subject to CEQA challenges, compound the situation. Other projects in planning phases, not yet thoroughly analyzed properly in total, collectively, and accumulatively, can significantly alter entire residential or commerce zones harmfully and irreparably.  

General and/or specific area management plans are viable metrics, but unfortunately, if the lead agency is pre-disposed and biased, they can grant umbrella immunity via multiple variances or amend these plans altogether by fiat, i.e., by overriding authoritative order. [6] 

Only eternal, many times voluntary stakeholder vigilance can be effective, and only by exercising one’s CEQA rights can a healthy and safe environment be obtained. 

Roger “Gonzo” Bütow is a prolific, often transgressive, journalist and a 52-year resident of Laguna Beach. He’s co-founder and Executive Director of the unincorporated association known as Clean Water Now. A retired general contractor, since 2010, he’s been a professional land use and regulatory compliance consultant, plus provided environmental and construction advisory services. His contact information can be found at: www.clean-water-now.org.

References

[1] https://en.wikipedia.org/wiki/California_Environmental_Quality_Act 

[2] https://ceqanet.opr.ca.gov

[3] https://resources.ca.gov/CNRALegacyFiles/ceqa/docs/ab52/final-approved-appendix-G.pdf 

[4] https://dot.ca.gov/-/media/dot-media/programs/environmental-analysis/documents/ser/fs-ceqa-document-types-a11y.pdf 

[5] https://ceqaportal.org/tp/CEQA%20Project%20Description%202020%20Update.pdf 

[6] https://opr.ca.gov/docs/OPR_C10_final.pdf.

Share this:

10 COMMENTS

  1. A classic example of local lead agency bias that created a catastrophe revolving around CEQA was the artist’s work/live in the Canyon.
    My understanding is that it’s NOT fully occupied, but was on the real estate market chopping block, asking price $22.5 million. It’s since, according to my research, been taken off the listings.
    One of my sources also discovered that LCAD was offered first bite, dibs, but they decided not to purchase it.
    I’ve also been informed that the developer filed litigation against several of my clients who opposed the project, who wanted the upper level removed, making it look less towering and the apartment building look less invasive as it was not within the character of the neighbor per their Special Area Plan (SAP).
    OC Superior Court Judge Kim Dunning agreed with the stakeholder’s attorney: Go into LA Times archives (Bettina Boxall reporting).
    She had very harsh words for the developer, to paraphrase Judge Dunning, she described it as an “apartment complex, not within the character prescriptions and the prescribed visual boundaries of the neighborhood’s SAP.”
    It bounced around at Coastal Commission too via appellate hearings.
    The CC staff biologist concurred with my Biological Resources criticism: The creek is a “blue line stream” (perennially connected to the ocean), and the low ball developer analyses of habitat value, certified by the City, was fatally flawed.
    The habitat element was also soundly rejected to my professional level gladness, it was declared an “Environmentally Sensitive Habitat Area” (ESHA), and a habitat restoration plus biota assessment and post construction monitoring exaction required for CC approval.
    The developer was also required to pull back further from the creek, if memory serves ≈10 feet.
    Apparently, even the attorney I advised, whom I closely coordinated with, has been forced to spend her own funds to ward off the developer?
    I was told that each of at least 4 individuals who were deeply involved spent ≈$30,000 each this year to defend their opposition. Keep in mind that their only “crime” was to exercise their rights per CEQA as I pointed out, and used the “Fair Argument Standard” as a direct result of OUR planning department’s initial declaration: That it only needed a lesser Mitigated Negative Declaration (MND).
    Eventually, the project’s multitudinous negative impacts were exposed, but that took years. The Fair Argument Standard metric prevailed though, if it had gone through a more robust Environmental Impact Report (EIR), it might have been downsized by our planning commission with more front loaded concessions acquired—–so CEQA worked in this confrontation.
    These types of litigious intimidation measures which are basically post-certification punishment for protectionists squelch criticism, in essence gag CEQA process stakeholders. Plus intimate future critics, obviously a byproduct.
    I think that I wasn’t filed against because I own no property, plus I’d hit them with an anti-SLAPP, counter lawsuit. Anti-SLAPP litigation can result in the provocateur paying a lot in damages, both punitive and compensatory.
    Don’t get me wrong, the development corporation are exercising their rights too, well within them. I’m not exonerating them, but the “ladder of law has no top or no bottom” as Bob Dylan sang.
    In my mind as a CEQA analyst myself, it was that Initial Checklist was where it broke bad, that was the slippery slope, so this example reveals how projects can go south, become nightmares, eating up hundreds of thousands in billed legal counsel hours on both sides….and for those critical a major distraction, consuming their lives for years.
    I noticed that in the City Council’s docket that same developer has ongoing litigation with us, I guess closed session material?
    More power to them if it’s the work/live—–Except, we, the people, are paying. All because a planner at City Hall seemed pre0disposed to rubber stamp the MND.
    Shoulda coulda woulda, if the project was determined to need a full blown EIR, a lot of time, stress and money might have been saved.
    Like life it’s own self, it’s those first baby steps, that first phase of the project’s life span that helps determine the arc.
    Res ipsa loquitur, i.e., the thing revealed itself: As under-analyzed by a possibly biased reviewer.

  2. Roger B: “To my knowledge, never discussed in Laguna’s preservation and protection community are the prohibitions and constraints regarding “patterns of development,” including “piecemeal” or “sequential” filings of multiple or complex, chronologically phased projects. ”

    Such a good point. I hear the City of Laguna Beach is known for its “piecemeal” project processing. Told it’s the way to go over, under and around getting building projects done in our town. Sadly, it isn’t even a surprise anymore to hear about Planning’s project recommendations and approvals given without comprehensive analysis and community impact evaluations. Baffling why this is acceptable to LB stakeholders.

    Seems the rubber stamping system mentioned requires some attention before lawsuits become common and the only recourse.

  3. I’ve been informed by neighbors up in/near Rim Rock Canyon (RRC) off Temple Hills Drive that the same developer has purchased significant acreage there.
    That developer intends to subdivide into parcels intended for high end customers?
    Although this will (due to real estate “comps”) raise the value of adjacent residences, it’ll create more noise and light, more traffic in and out. Quality of life diminished, somewhat extinguished?
    RRC Road during a daisy chain of construction activities will increase congestion, one way in, one way out.
    Noisy for the years of build out.
    RRC Road post-construction vehicular visitations will never subside because of all of the new homeowner car trips, their guests, the constant parade of maintenance personnel, food and other delivery trucks which now, post-Covid, that’s where we’re at societally.
    This isn’t good news for wildlife or humans. That canyon, like many, is a natural amphitheater, sound carries up and into the high value native habitat (ESHA).
    So what does the developer’s litigation in Laguna Canyon achieve, alleging “malicious intent” on the part of artist’s work/live critics, but to front load intimidation?
    Through some kind of pretzel logic, invoking, using their rights under law, constitutes “malicious intent?” How could any judge or jury contemplate awarding in favor of the developer, keep from laughing aloud?
    Suppressing people’s rights is not only fiscal bullying (deeper pockets) but sounds very dictatorial, doesn’t it?
    Online research reflects this definition: “Malicious intent means that the person(s) acted willfully or intentionally to cause harm without legal justification.”
    Don’t the state’s expressed rights of redress embedded and integral in the CEQA review process constitute “legal justification?”
    So the developer’s cause of action seems to be a convoluted manipulation of statutes, common sense says it’s the wrong means in the wrong hands which should have been rejected outright as frivolous, shouldn’t it?
    And it’s not paranoia on RRC neighbor’s part, to feel threatened already, reticent about bringing it up on the CEQA radar screen because of developer-generated blowback.
    One seldom considered aspect is if and when the existing homeowners want to cash out, under the Real Estate Disclosure Act they’ll have no choice but to divulge the impaired conditions.
    Even if prior to construction, any adverse condition planned or in place (known or knowable) is subject to dispute if not disclosed, at least that’s my interpretation.
    I guess the sheep that developer’s dream of while nodding off are actually bags of moolah jumping over the fence and depositing themselves in their investor’s bank accounts?

  4. Laguna Beach’s director of community development has and continues to fail to comply with all CEQA guidelines, whether it be for not providing any initial biology determination reasons to issue CEQA Exemptions on residential infill projects, or to flat out violate and ignore CEQA code which is California state law. That law also requires certain CEQA projects to pay federal and state permit and take fee’s depending upon the project. The law also is very specific with exceptions to exemptions, piecemealing and cumulative damage as on Alta Vista Way for 1 example show with exception of CM Weiss our City council, DRB and Wiener have three projects being built within 400 ft of one another at the same time.

    Laguna is highly sensitive habitat/environment with listed species of special concern/protected plants and animals and wild life corridors being destroyed. Laguna as a preserved greenbelt is under siege by developers that want to over develop at the cost of the environment and your view, property rights and property equity. Our council and city as lead agency needs a trustee agency to oversee all CEQA. Until then Roger’s example shows just one of many bad actors continuing to roll along. And look at Sweetwater. Our former and current Mayor allowing its department leaders and boards they appoint to approve projects that will kill residents with cancer and led poisoning. Do you think this is funny, Ok? How sad If you do. If not vote in people that care vote out opportunists looking for some type of personal gain.

  5. Mr. Quilter:
    Mr. Fisch has already answered your question by his signature, plus the editor dropped the MOM disclaimer regarding his employment by MOM LLC long ago.
    My research indicates that it’s been months since they parted ways.
    And hello? He’s a PR/Messaging specialist, he’s not responsible for project development or any other policy, procedure or protocol of a corporation/entity/person he works for.
    These types are brought in for many reasons: Damage control, enhanced/amplified messaging, and in this case getting the word out that (possibly) a better steward and developer of major parcels under re-development could be an improvement over Mo Money, Mo Money. Mo Money.
    Faulting someone over their career choice, or their clients? You must also despise and distrust attorneys, in spite of the fact that they’re “advocates,” get it?
    Who did you work for in your career, care to disclose them?
    PR flacks are hired for “imaging,” and get paid for advocating (defending and explaining) their client’s position.
    I’m occasionally put in that situation, my personal vow is not to support a person or project that doesn’t meet my environmental litmus test or personal ethics standards. Which lessens my income potential, but that’s MY decision, it’s literally MY business, certainly not delegated to trollish interlopers or critics.
    You, OTOH, should carry disclaimers: My research indicates that you worked on/for several City Council candidates staff, including at least one presently seated.
    Are you willing to divulge who you worked for, divulge ANY funds or ANY benefits that you received?
    See where this is headed? Just how deep, how far into the weeds, the personal affairs or lives are we going to go?
    And who gets to decide what’s relevant, inordinately or inappropriately affecting this City via stealth and deception?
    These types of extended witch hunts are so today, so “drag thru the mud” Trumpian, aren’t they?
    Not to mention reflective of what’s created deep divisions, paranoia and here, community distrust. So it’s not limited to Washington.
    We’ve become the microcosm of the macrocosm. And IMO worse off for it.
    Baiting and accusation via innuendo is also rampant.
    Evidence-based facts are one thing, but you Mr. Quilter follow these pages, their content and comments sections closely. You asked a question that simple browsing, research online, or a phone call to MOM would confirm.
    Did it occur to you that you lower, not raise the bar?
    Reminds me of what Army attorney Joseph Welch said to Senator Joe McCarthy……no sense of decency, no sense of shame.
    I don’t really know either of you, but I am curious: Are we, as a community EVER going to return to a less acrimonious public square, like this one?
    Just wondering…..which is my concern, not playing referee for 2 grown men I know little about.

  6. Mr. Quilter, CEQA” is an interesting topic that most residents, staff and even public officials know little or nothing about. It behooves us to better understand its purpose and power.

    I don’t understand why you would choose to detract from it with such a non-relevant comment.

    Thankfully we are finally getting some knowledgeable facts and information from an CEQA expert (Roger Bütow) and some experience examples (Mr. Fisch) about how CEQA impacts our community. Personally I appreciate the education and input.

  7. Chris, I am not under contract with Continuum Analytics.
    Your question to me has nothing to do with a former strategic PR client that has no association to these CEQA posts and comments.

    I have spoken in Council, and written about CEQA since 2021 many times as a resident and voter. I believe I am one of a few if not the only resident in this city that was able to get a CEQA exemption overturned, invalidated without an attorney, or through litigation. I was also successful getting Marc Wiener to commit in writing to do a CEQA review with an outside source should the applicant return. The project violated about 9 CEQA citing’s and at very least would be an EIR. City negligence and owner inexperience, or unrealistic project scope in that case cost the property owner his project! Thoughtful planning could have yielded a different outcome.

    I do offer residential project consulting services to residents that wish to take advantage of CEQA benefits, or use CEQA to protect property rights and preserved sensitive environments in our canyon areas. Project consulting in general is critical in Laguna, especially now with over development issues, city negligence and with residents now showing willingness to litigate. Knowing city process, state and federal guidelines and requirements make for far more efficient projects and save those that wish to build and remodel time and money. Architect’s and builders that do not follow guidelines with proper studies and reports get stopped by the city, DRB, or appropriate residential intervention.

    Laguna Beach as lead agency continues its negligence in violating CEQA code, which has implications of breaking both state and federal law. This has proliferated the past 6 years since Kempf and Whalen have exchanged the baton so many times. Chris, I have been told you are a friend and passionate political supporter, defender of Sue Kempf. The detailed background I received clarified why you asked your question in my mind. Your question does not cancel opportunism, special interest or negligence in public service.

  8. Why not call MOM LLC up, they are happy to answer your questions, Mr. Quilter who do you work for ? and what does this have to do with the issue, of what goes on in our community development dept where it is obvious that something is very very wrong and now we are in the throes of possibly losing a beautiful and natural canyon and the property rights of those that live next to it. I applaud Roger and Tony and MJ for speaking up and I hope more will. It’s not like everyone is asleep in this town, thank God!

  9. On January 10,2024, the Supreme Court of the State of California “DENIED “ the Laguna Beach Historic Preservation Coalition and Historic Architecture Alliance’s Petition for Review and Request for Depublication(of lower courts’ rulings in favor of the City of Laguna Beach and te Kirby’s!
    This is quite literally a historic case for California homeowners who believe in thoughtful and reasonable preservation & restoration of the homes they love. A written precedent has been set with this case.
    So, 40 months after DRB’s 4-1 approval, CASE CLOSED! The City of Laguna Beach & the Kirby’s prevailed!
    USE or ABUSE of CEQA?? I my opinion it’s was a blatant ABUSE!

LEAVE A REPLY

Please enter your comment!
Please enter your name here