With the recent rains and wet weather generated from the El Nino arising in the Pacific Ocean, property owners in California may be facing property damage arising from eroding land on cliffs and in valleys. Normally, in order to make repairs, a land owner would have to go through the time consuming and expensive process of securing land use permits through compliance of the California Environmental Quality Act, commonly known as CEQA.
The California legislature has provided one exemption to CEQA compliance with respect to emergency repairs. The law provides as follows:
The following emergency projects are exempt from the requirements of CEQA.
(a) Projects to maintain, repair, restore, demolish, or replace property or facilities damaged or destroyed as a result of a disaster in a disaster stricken area in which a state of emergency has been proclaimed by the Governor pursuant to the California Emergency Services Act, commencing with Section 8550 of the Government Code. This includes projects that will remove, destroy, or significantly alter an historical resource when that resource represents an imminent threat to the public of bodily harm or of damage to adjacent property or when the project has received a determination by the State Office of Historic Preservation pursuant to Section 5028(b) of Public Resources Code.
(b) Emergency repairs to publicly or privately owned service facilities necessary to maintain service essential to the public health, safety or welfare.
(c) Specific actions necessary to prevent or mitigate an emergency. This does not include long-term projects undertaken for the purpose of preventing or mitigating a situation that has a low probability of occurrence in the short-term.
(d) Projects undertaken, carried out, or approved by a public agency to maintain, repair, or restore an existing highway damaged by fire, flood, storm, earthquake, land subsidence, gradual earth movement, or landslide, provided that the project is within the existing right of way of that highway and is initiated within one year of the damage occurring. This exemption does not apply to highways designated as official state scenic highways, nor any project undertaken, carried out, or approved by a public agency to expand or widen a highway damaged by fire, flood, storm, earthquake, land subsidence, gradual earth movement, or landslide.
(e) Seismic work on highways and bridges pursuant to Section 180.2 of the Streets and Highways Code, Section 180 et seq.
In Western Municipal Water District of Riverside County v. Superior Court of San Bernardino County (1987), the court held that an emergency is an occurrence, not a condition, and that the occurrence must involve a clear and imminent danger, demanding immediate attention. In this case, the water district proposed to dewater areas that could potentially be subject to liquefaction in the event of an earthquake. The excess water was to be pumped out to reduce the hazard as an emergency project. The court, however, ruled that this was not the proper use of this exemption. The imminence of an earthquake is not a condition but a potential event and no real change had yet occurred or could be incontestably foreseen as being mitigated by the proposed actions. The standard of review is there must be substantial evidence in the record to support the agency findings of an emergency, in this case, the Court found inadequate evidence of imminent danger and the subsequent need for immediate action. This holding is now codified in subsection (c).
If you have property damage arising out of the El Nino events and wish to find out if the CEQA exemption applies, please contact one of the professional at Dalton & Tomich PLC to discuss your case.