Practical Advice for Minimizing CEQA Liability in Your City, continued
Conduct a Thorough Preliminary Review in Search Of Potential Exemptions Local elected officials may know from experience in serving their cities that many projects (especially small and infill projects) are truly exempt from CEQA. But if your city is going to approve a project without environmental review based on an exemption determination, make sure all the i’s are dotted and the t’s are crossed, because exemptions can raise red flags to ardent project opponents. The first step is to conduct a thorough preliminary review of a proposed activity to determine whether the activity is a project that is subject to CEQA and, if so, whether the project is exempt from CEQA. Statutory exemptions are straightforward because they are absolute, so a
project that is statutorily exempt from CEQA requires no further environmental review or consideration. In contrast, categorical exemptions are subject to exceptions. When any applicable exemption is identified for a project, city staff should carefully collect and develop evidence for the record to demonstrate how and why the project falls within the language and meets all elements of the exemption(s). It is perfectly fine to assert more than one applicable exemption. However, if the city is claiming a project is categorically exempt and there is any legally adequate evidence in the record of a possible adverse impact, then more substantive environmental review may be required. And while CEQA does not require agencies to follow any specific procedure in approving CEQA-exempt projects, once
1. Expressly mentions that determination and cites that exemption in any public notices or agendas issued leading up to a final decision; and 2. Files a Notice of Exemption (NOE) as soon as possible after approving the project. Doing so will ensure that the city can easily secure dismissal of any subsequent CEQA litigation brought by parties who failed to challenge the exemption before project approval and thus failed to exhaust their administrative remedies. It will also trigger a strict and short 35-day statute of limitations period within which any related CEQA lawsuits must be filed or lost forever. When preparing and filing an NOE for an approved project pursuant to a CEQA exemption, make sure that the city:
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it is decided that a project is exempt, it is best to ensure that the city:
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• Satisfies all the NOE content requirements, most notably by: 1) including a finding that the project is exempt, with a brief statement of reasons and a citation to the statutory and/or CEQA Guideline section memorializing the exemption; and 2) identifying all project applicants/approval recipients, as CEQA requires any subsequent legal challenge to name all such parties identified in the NOE; • Files the NOE promptly with the county clerk after the project is approved and insists the clerk: 1) post the NOE within 24 hours and for a full 30 days; and 2) thereafter return the NOE with a notation of the period it was posted; and • Revises and re-files the NOE if there is any doubt regarding its validity. Otherwise CEQA’s 180-day statute of limitations period rather than the short 35-day limitations period may be found to apply.
John Carpenter / John Robbins jc@crcre.com / jr@crcre.com (925) 866-1300 www.crcre.com BRE License 01280981
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Looking for Footnotes? A fully footnoted version of this article is available online at www.westerncity.com.
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