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Historic Trees and the California Environmental Quality Act

In the recently published case, Save Our Big Trees v. City of Santa Cruz, (Cal. 6th App. Div., Pub. 10/23/ 15, the Court address the issue of whether Historic Trees were exempt from CEQA.

By way of background, in 1976, the City of Santa Cruz sought to protect its urban forest by adopting the “Heritage Tree Ordinance,” which governs the protection of large trees and trees having other significance. The City later adopted the “Heritage Tree Removal Resolution,” which governs the removal of heritage trees. In 2013, the City amended its Heritage Tree Ordinance and Heritage Tree Removal Resolution. The City concluded that these amendments (the Project) were categorically exempt from the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) because they assured the “maintenance, restoration, enhancement, and protection” of natural resources and the environment. Plaintiff Save Our Big Trees file suit alleging that the amendments weakened existing heritage tree protections such that the Project is not exempt from CEQA and sought a writ of mandate directing the City to set aside its amendments for failure to comply with CEQA. The Trial Court denied the writ and the Plaintiff appealed.

The Court began its analysis noting that the overriding purpose of CEQA is to ensure that agencies regulating activities that may affect the quality of the environment give primary consideration to preventing environmental damage. The statute and its implementing regulations, the CEQA Guidelines, prescribe review procedures a public agency must follow before approving or carrying out certain projects.

CEQA review procedures can be viewed as a “three-tiered process.” The first tier requires an agency to conduct a preliminary review to determine whether CEQA applies to a proposed project. If CEQA applies, the agency must proceed to the second tier of the process by conducting an initial study of the project. Among the purposes of the initial study is to help to inform the choice between a negative declaration and an environmental impact report EIR. If there is “no substantial evidence that the project or any of its aspects may cause a significant effect on the environment,” the agency prepares a negative declaration. (Guidelines, § 15063, subd. (b)(2).)

Alternatively, if the initial study identifies potential significant effects on the environment but revisions in the project plans “would avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur” and there is no substantial evidence that the project as revised may have a significant effect on the environment, a mitigated negative declaration may be used.

Finally, if the initial study uncovers “substantial evidence that any aspect of the project, either individually or cumulatively, may cause a significant effect on the environment” (CEQA Guidelines, § 15063, subd. 12 (b)(1)), the agency must proceed to the third tier of the review process and prepare a full EIR.

This case evaluated the first tier of review–whether the Project is subject to CEQA review. Noting that several categories of projects are statutorily exempt from CEQA review for policy reasons. (§ 21080, subd. (b)(1)- (15), and that other classes of projects are “categorically exempt” from CEQA review because the Secretary of the Natural Resources Agency “has found’ . . . [they] do not have a significant effect on the environment,” (CEQA Guidelines, § 15300; § 21084, subd. (a), the Court looked to the same to determine if a categorical exemption applied. Among the categorical exemptions is the class 7 exemption for “actions taken by regulatory agencies as authorized by state law or local ordinance to assure the maintenance, restoration, or enhancement of a natural resource where the regulatory process involves procedures for protection of the environment.” (CEQA Guidelines, § 15307.) Another categorical exemption, the class 8 exemption, is very similar; it exempts “actions taken by regulatory agencies, as authorized by state or local ordinance, to assure the maintenance, restoration, enhancement, or protection of the environment where the regulatory process involves procedures for protection of the environment.” (Id., § 15308.)

When faced with a challenge to an agency’s exemption determination, the court considers whether the agency proceeded in the manner required by law and whether its determination is supported by substantial evidence. The interpretation of an exemption presents a question of law subject to the Court’s independent review and in the CEQA context, substantial evidence “means enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.” (CEQA Guidelines, § 15384, subd. (a).) Substantial evidence includes “facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts” (id., subd. (b)), but not “[a]rgument, speculation, unsubstantiated opinion or narrative, evidence which is clearly erroneous or inaccurate, or evidence of social or economic impacts which do not contribute to or are not caused by physical impacts on the environment.” (Id., subd. (a).)

The Court of Appeals found that the City failed in its burden to demonstrate with substantial evidence that the Project falls within a categorical exemption to CEQA and directed the trial court to issue a writ of mandate requiring the City to set aside the 2013 amendments to the Heritage Tree Ordinance and Heritage Tree Removal Resolution.

This case is very instructive with respect to CEQA challenges. Property owners in California who seek to develop, redevelop, or object to the development of land need to take into consideration the implications of the California Environmental Quality Act before taking on, or objecting to, a project.

If you are developing property in California, please consider contacting one of the professionals at Dalton & Tomich PLC to assist you with any CEQA related issues that you may have.

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