Understanding CEQA Law

Brian J. Bergman
bbergman@bdgfirm.com
Los Angeles Office
10880 Wilshire Blvd., Suite 900  Los Angeles, CA 90024  (310) 470.6110
Orange County Office
17762 Cowan, Suite 200  Irvine , CA 92614  (949) 494-1393
www.bdgfirm.com

 1970: Governor Reagan signs California
Environmental QualityAct (“CEQA”) into law.
 Initially intended to apply to publicly
sponsored projects only
 1972: Courts hold that CEQA applies to “all”
projects subject to public agency
discretionary action.
2Copyright © 2015 • Bergman Dacey Goldsmith • All Rights Reserved • The information on these slides is for educational purposes and does not constitute legal advice

 California Environmental Quality Act
 Purpose: CEQA’s purpose is to inform
governmental decision makers and the public
about potential impacts of a proposed project
on the environment, and how those impacts
can be avoided or significantly reduced.
 Complaints: CEQA has become a tool to slow
and stop development projects.

 Exercise of Powers by Public Entity
- Actions DirectlyTaken by the Public
Entity
- Private Party Actions requiring Public
Entity Approval
 Potential Effect on the Physical
Environment
 DiscretionaryVersus Ministerial Action

 Lead Agency
 Responsibility
 The Lead Agency is responsible for preparing the appropriateCEQA
review.
 Who is the Lead Agency?
 The public entity carrying out the project, or
 Where the public entity is just providing approvals, the public entity
with the greatest responsibility for supervising or approving the
project. (Ties go to the entity that acts first).

 Responsible Agency
 Responsibility
 Consult with the Lead Agency and provide information and
comments during various points of the CEQA process.
 Take over as Lead Agency?
 Who are Responsible Agencies?
 Public entities other than the lead agency, with discretionary
authority over some portion of the project.
(Continued)

 Decide if action is a project subject to CEQA
 Decide if the project is exempt
 If not exempt, prepare an Initial Study
 Decide what level of environmental
documentation is required, and prepare:
 Negative Declarations/Mitigated Negative
Declarations
 Environmental Impact Reports

 Statutory Exemptions
 Categorical Exemptions
 Benefits of CEQA Exemptions
o No specific documentation required
o No specific hearings required
o No waiting for completion of environmental
documentation before approving project

 The whole of the project must be considered exempt in order
for exempt status to apply.
 You cannot split up a project into pieces in order to exempt a
portion of a project.
 Exemptions may be combined to cover an entire project.
 Future proposed projects usually do not need to be analyzed at
the same time as current proposed projects in order to
determine the applicability of an exemption.
 Example:The reuse of a school campus does not need to be analyzed
at the same time as a decision to close a school campus for purposes
of applyingCEQA exemptions where a decision on reuse has not been
made at the time that closure has been approved.

 Cal. Public Resource Code 21080.18
 “[CEQA] does not apply to the closing of any
public school (kindergarten or grades 1
through 12) or the transfer of students from
that public school to another school if the
only physical changes involved are
categorically exempt under [CEQA].”

 14 CCR 15314 (Minor Additions to Schools)
 “[CEQA does not apply to] minor additions to
existing schools within existing school grounds
where the addition does not increase original
student capacity by more than 25% or ten
classrooms, whichever is less.The addition of
portable classrooms is included in this
exemption.

 14 CCR 15322
 “[CEQA does not apply to] the adoption,
alteration, or termination of educational or
training programs which involve no physical
alteration in the area affected or which
involve physical changes only in the interior
of existing school or training structures.”

 Operation, repair, maintenance, or minor alternations to existing facilities
(14 CCR 15301)
 Examples: Addition of up to 10,000 square feet to an existing structure.
Lease of an existing structure to a new user with no expansion of use.
 Replacement or reconstruction of existing facilities (14 CCR 15302)
 Example: Replacement/Reconstruction of School buildings to make
them more earthquake resistant. Can increase capacity up to 50
percent.
 New Construction of Small Structures (14 CCR 15303)
 Examples: Swimming pools, garages, fences.

Exceptions to the
Categorical Exemptions:
• Project will likely have significant effect on the
environment due to unusual circumstances
• Project will likely cause a significant cumulative impact
• Project will impact a scenic highway
• Project will be built on a hazardous waste site
• Project will impact historical resources
Burden and Standard of Review on Exception
Determinations.

 Berkeley Hillside Preservation v. City of Berkeley
(1st Appellate District 2012) 203 Cal.App.4th 656 (Pending review with the
Cal. Supreme Court)
 Citizens for Environmental Responsibility v. State
(3rd Appellate District 2014) 224 Cal.App.4th 1542
 San Francisco Beautiful v. City and County of San Francisco
(1st Appellate District) 2014 Cal.App. LEXIS 477 (Status changed to
published)

California Supreme Court holds that a petitioner must exhaust
administrative remedies before it may challenge a public entity’s decision
that a project is exempt under the California EnvironmentalQuality Act
 The legal doctrine of exhaustion of administrative remedies requires that
a party raise its concerns regarding a proposed project before the project
is approved by the public entity. If a party does not raise its concerns
before the project is approved, the party may be barred from raising its
concerns in court.
 Prior to the Tomlinson decision most court’s had held that there was no
duty to exhaust administrative remedies before filing a lawsuit over a
CEQA exemption approval because CEQA did not require that a public
hearing be held to approve a CEQA exemption.

 In Tomlinson, the Court ruled that if an opportunity was given to
speak out for or against an exemption determination in a public
hearing, then the doctrine of exhaustion of administrative
remedies did apply.
 The Court’s decision is a major departure from the majority of
prior appellate decisions that had held that a party does not need
to exhaust their administrative remedies prior to challenging a
public entity’s decision that a project is exempt.
 Does your public entity have procedures in place to take
advantage of the protections afforded by theTomlinson opinion?

1) Document the exemption determination
• Prepare Staff Report that has facts supporting a finding
that an exemption is applicable.
• Include facts in staff report showing that no exception
to an exemption applies.
• If there will not be a specific hearing date for approval of
the exempt action, the staff report should specify an
exact date that the exempt project was approved

2) Hold public hearing on approval of Project and use of CEQA
exemption
 Not required, but can protect your exempt project from
challenge
 Exhaustion of Administrative Remedies (Tomlinson v.
County of Alameda)
3) File Notice of Exemption

1) Brief description of Project
2) Description of location of Project
3) Identification of which CEQA exemption is
being utilized
4) A brief statement of reasons to support the
finding that the project is exempt

1) Filed after the Project is Approved
2) Filed with the County Clerk
3) When the County Clerk returns the Notice, the
District must retain a copy of the Notice for one year
4) The filing of an NOE shortens the time that
interested parties have to file a legal challenge to the
exemption from 180 days to 35 days

 File the Notice of Exemption to lock in a short statute of
limitations.
 Approve the exemption determination at a public hearing in
order to force opponents to exhaust their administrative
remedies.
 Prepare in advance to show substantial evidence in the
Administrative Record supporting the District’s decision that
a CEQA exemption applies.
 Can only use documents prepared prior to District decision
on closure/reuse to support your position. No
witness/deposition testimony

23
These materials have been prepared for informational
purposes only, not to provide legal advice.
Please do not rely on this presentation for a legal opinion
or legal advice.
Any legal issues for your organization should be addressed
to counsel for an opinion based on the facts and
circumstances of the case at hand.
Copyright © 2015 • Bergman Dacey Goldsmith • All Rights Reserved • The information on these slides is for educational purposes and does not constitute legal advice

24
Los Angeles Office
10880 Wilshire Blvd., Suite 900  Los Angeles, CA 90024  (310) 470.6110
Orange County Office
17762 Cowan, Suite 200  Irvine , CA 92614  (949) 494-1393
www.bdgfirm.com
Brian J. Bergman
bbergman@bdgfirm.com
Copyright © 2015 • Bergman Dacey Goldsmith • All Rights Reserved • The information on these slides is for educational purposes and does not constitute legal advice

Understanding CEQA Law

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