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CVP v MCOSD: CVP Petition For Review Reply Filed with CA Supreme Court
On March 7th, we published an article detailing the facts of the opinion rendered by the California First District Court of Appeal in the
case of Community Venture Partners, Inc. (CVP) v. Marin County Open
Space District (MCOSD), which contested the introduction of mountain biking on
the Bob Middagh Trail in the Alto Bowl Preserve.
It remains our position that the Appellate Court’s opinion was seriously flawed and contrary to the California Environmental Quality Act (CEQA). And though it remains an unpublished decision, we believe it should not be allowed to stand because it jeopardizes the fundamental tenets of CEQA. As such, on March 4, 2020, CVP filed a Petition for Review to the California Supreme Court.
Background
information on the Appellate Court's opinion, which was the result of a
lengthy legal process that began in 2017, can be found in a series of articles published on the Marin Post.
MCOSD responded to our petition by essentially reiterating its claims that no CEQA review is required to assess impacts on existing trail users, which contradicts black letter law.
As the final step in the process of petitioning the Supreme Court for reconsideration of our case and the importance of clarifying CEQA law, CVP has responded to the County's counterclaim.
The Summary of that argument is noted below. To read our responding brief in full, please CLICK HERE.
Support this effort
We want to thank those who have contributed, to date, and ask those who have not to please consider doing so, today. We believe that adhering to CEQA's regulations, which protect our public process and our dwindling natural environment, with its ability to provide a respite from the increasingly hectic pace of our lives, is more important than ever
Please click here to donate to the CVP Open Space Legal Fund
Case No. S260789
IN THE SUPREME COURT OF CALIFORNIA
REPLY ON PETITION FOR REVIEW
COMMUNITY VENTURE PARTNERS, Petitioner and Respondent vs.
MARIN COUNTY OPEN SPACE DISTRICT, Defendant and Appellant
SUMMARY OF REPLY
Marin County Open Space District’s Answering Brief ("DAB”) argues the Court of Appeals applied a clear and well defined body of law on the two issues for which Petitioner seeks review. This is a predictable argument, which does not mean, however, the law on these issues is near settled or clear.
On the issue of considering social effects, the District claims the law is clear because the social impacts to existing hikers and equestrians due to the physical changes to the Middagh Trail (including introducing mountain bikes) are not caused by physical changes to the environment. This is factually incorrect, as presented in Petitioner’s Petition for Review (“PFR”) at pages 17- 18, 33-38.
The Court of Appeals’ failure to consider the evidence that social effects were caused by changes to the environment can be directly traced to the confusing and unanalyzed law on this topic, including decisions that have inconsistently applied the cryptic language of the CEQA Guidelines.
The issue of social effects in this case is central to both issues for which Petitioner seeks review. Here, the Road and Trail Management Plan (“RTMP”) program EIR states that “[b]ecause the safety of users of the road and trail system is a social effect...it is not within the purview of CEQA.” See AR 59 2241 (emphasis added.)
Despite this, the District found that the Middagh Trail project could tier to the RTMP project would cause both physical and social impacts to existing users. If social effects are required to be considered as a consequence of physical changes to the trail environment caused by a project, the District cannot tier that project’s CEQA review to a program EIR that rejected the concept of even considering such effects.
On this second issue involving tiering, no case, including Friends of College of San Mateo Gardens v. San Mateo County Community College Dist. (“San Mateo Gardens”) (2016) 1 Cal. 5th 937, has analyzed the proper standard for reviewing an agency’s determination that a later project falls “within the scope” of a prior program EIR and thus may utilize Public Resources Code Section 21166 (“Section 21166") and 14 Cal. Code Regs. (Hereinafter “CEQA Guidelines”) § 15162 to evaluate whether a second tier project requires more specific CEQA review than in the prior program EIR.
The District’s argues San Mateo Gardens clarifies the proper standard, see DAB, p. 22, but this is untrue. San Mateo Gardens addresses a ‘changed’ project, not a tiered project. Here, the challenged action is a second-tier project that implements policies of the RTMP literally at the ground level.
San Mateo Gardens also discusses what is required for a tiering analysis, 1 Cal. 5th at 960, which did not occur here and will not occur in future cases that will instead follow the District’s erroneous instincts to shove future projects into the ‘scope’ – however that is defined - of the program EIR.
The Court of Appeals decision follows more closely cases such as Latinos Unidos de Napa v. City of Napa (“Latinos Unidos”) (2013) 221 Cal.App.4th 192, 196, 201-202, which interprets the “within the scope” language as dependent on whether Section 21166 criteria are met, i.e., whether there are substantial changes, or new information, warranting CEQA review.
The Section 21166 / CEQA Guideline § 15162 criteria are designed for use once the agency has decided that the second tier project is ‘within the scope’ of the program EIR. See CEQA Guidelines § 15168(c)(2). However, the Guidelines are not clear what it means for a project to be within the scope of a prior program EIR. For example, CEQA Guidelines § 15168(c)(1) requires an initial study for a second tier project that would “have effects that were not examined in the program EIR.”
No court decision has addressed if this is the standard for ‘within the scope’ language as well. Meanwhile, the ‘within the scope’ standard has morphed toward the more restrictive criteria for changed projects under Section 21166 and CEQA Guideline § 15162.
Case law does not adequately distinguish between decisions involving changes to a project and those involving tiering a later project to a program EIR. In the former, Section 21166 criteria are appropriate given the interest in finality for CEQA project review, but in the latter such an interest in finality is inappropriate as it conflicts with CEQA’s endorsement of tiering as a way to focus environmental review at the proper level of scrutiny for each successive tiered project implemented under the umbrella of the program EIR.
These second and third-tier projects may figuratively fall ‘within the scope’ of the initial ‘program,’ but that does not mean that further CEQA review is not required at the site-specific level based on CEQA’ tiering procedures.
The District’s brief falsely characterizes Petitioner as claiming that all social effects must always be considered, or as failing to acknowledge the difference between the Section 21166 and Section 21093-21094 criteria for whether further environmental review is required.
This is not true.
This case demonstrates how ambiguity in the law, and how appellate courts’ inconsistency in applying this law, led the Court in this instance to getting it wrong, thereby condoning the District’s behavior in forcing a major change in trail use onto decades-long existing users without considering the adverse effects that may occur.
Allowing this decision to stand would give an unlimited green light to the District and other agencies throughout the state to make highly impactful decisions without consideration of enforceable mitigation and/or alternatives that would avoid significant impacts to recreational users throughout California. At the least, the law should be clear on how agencies can proceed in these situations to avoid future legal conflicts.
THE DISTRICT’S ACTIONS ARE FALSELY PRESENTED AS COMMENDABLE BY THE DISTRICT’S BRIEF.
The District portrays its actions as consistent with CEQA and accountable local government, the fulfillment of the wishes of the vast majority of the District’s constituents. None of this is remotely true.
The history of the Middagh Trail project began shortly after the District’s enactment of the RTMP, when the District invited proposals to be identified and scored by the District as it considered future projects. Under the RTMP, all qualifying projects were to be scored for eligibility. However, out of a number of proposals, including several eligible projects from local groups to do restoration and rehabilitation in the Alto Bowl Preserve without adding bikes, the District only scored the proposal submitted by the Marin County Bicycle Coalition (“MCBC”) to change the trail design and use in the Preserve so as to accommodate mountain biking.
The trial court and the Court of Appeal found the District’s actions in predetermining which project would be chosen to be contrary to the procedures required by the RTMP and thus an abuse of discretion. See Slip. Op., pp. 30-32.
After having violated its own RTMP by pre-selecting the MCBC proposal as the project to be implemented in the Alto Bowl Preserve, the District then engineered a ‘process’ whereby the project to change the Middagh Trail to mountain biking was presented to the public as a fait a compli, with ready-made findings that the project would not cause any significant environmental impacts. Even after receiving numerous objections from local users – including a petition with over 1,000 signatures opposing the proposal to allow mountain biking on the trail[1] – the District announced on November 29, 2016 that the project had been ‘approved’ based on its conclusions that significant impacts would be avoided.
All of this was done without any CEQA review whatsoever. See PFR, pp. 26-29.
The trial court held that the District had improperly approved the Project prior to completing CEQA review, citing Save Tara v. City of West Hollywood (“Save Tara”) (2008) 45 Cal. 4th 116, 130-131, 139. See 4 CT 725-730. The Court of Appeal reversed by interpreting the District’s announcements that it had ‘approved’ the Project as simply initial endorsements for the Project. Slip Op., pp. 12-14.[2]
The District from early on decided to open the Alto Bowl Preserve and Middagh Trail to mountain biking without considering impacts on the existing users of the Preserve. These citizens testified about the likelihood of foreseeable accidents and eventual user displacement – testimony supported by official incident reports submitted into the record (see PFR, pp. 33-38) – as a result of the physical changes that were ignored by the District in an unaccountable process contrary to CEQA principles that an agency consider enforceable mitigation or feasible alternatives to avoid significant impacts. Pub. Res. Code § 21002.
Against the backdrop of this breakdown in civic accountability, the District’s legal positions that 1) social effects caused by the physical effects of the change in trail use need not be evaluated; and 2) future trail projects on District lands will be considered to be ‘within the scope’ of the RTMP EIR and thus exempt from site-specific review, deserve review from this Court.
THE ISSUE OF HOW TO CONSIDER SOCIAL EFFECTS REMAINS OBTUSE AND INCONSISTENT BETWEEN THE CEQA GUIDELINES AND APPLICABLE CASE LAW.
On social effects, the District argues that “Petitioner’s wish that the law said something different is not a basis for this Court’s review.” See DAB, p. 23. However, the law does say something different than what is stated in the Court of Appeals’ opinion, namely that social impacts that are caused by physical changes to the environment must be considered in CEQA review. CEQA Guidelines § 15064(e), § 15131(b).
In this case, the Court of Appeal did not consider the social impacts to existing trail users based on the physical changes to their environment, which includes natural and man-made conditions. See CEQA Guidelines § 15360. Otherwise, there could never be CEQA impacts to such resources as aesthetics or recreational use and values. Here, trails constitute man-made conditions that are part of the environment. The addition of bicycle traffic to this man-made environment is a physical change. See CEQA Guidelines § 15064(d)(1).
In sum, it is the District who argues for law that is inconsistent with CEQA and its Guidelines, a reason perhaps why the Court of Appeal did not publish its opinion despite two requests and despite the opinion addressing factual and legal issues without precedent in California law.
[1] The District’s argument that the Project was supported by over 80% of the public is based on its own self-serving announcement that it had approved the Project. The figure is contradicted by public comments and by the petition of over 1,000 persons opposing the change of use, which was submitted to the District in 2015 and 2016. AR 252 4729-4840.
[2] Because the Court’s ruling is based on a misinterpretation of what the District actually did in this case i.e., approved the Project on November 29, 2016, rather than a misstatement of the applicable law under Save Tara, Petitioner has not chosen to seek review on this issue.
Bob Silvestri is a Mill Valley resident and the founder and president of Community Venture Partners, a 501(c)(3) nonprofit community organization funded only by individuals in Marin and the San Francisco Bay Area. Please consider DONATING TO CVP to enable us to continue to work on behalf of Marin residents.