Supreme Court of California Justia
Citation 45 Cal. 4th 116, 194 P.3d 344, 84 Cal. Rptr. 3d 614

Save Tara v. City of W. Hollywood


Filed 10/30/08

IN THE SUPREME COURT OF CALIFORNIA

SAVE TARA,
Plaintiff and Appellant,
S151402
v.
Ct.App. 2/8 B185656
CITY OF WEST HOLLYWOOD,
)

Defendant and Respondent;
Los Angeles County
Super. Ct. No. BS090402
WASET, INC., et al.,
Real Parties in Interest and
Respondents.

Under the California Environmental Quality Act (CEQA) (Pub. Resources
Code, § 21000 et seq.),1 a public agency must prepare an environmental impact
report (EIR) on any project the agency proposes to “carry out or approve” if that
project may have significant environmental effects (§§ 21100, subd. (a), 21151,
subd. (a)). We address in this case the question whether and under what
circumstances an agency’s agreement allowing private development, conditioned
on future compliance with CEQA, constitutes approval of the project within the
meaning of sections 21100 and 21151. We conclude that under some

1
All further unspecified statutory references are to the Public Resources
Code.
1



circumstances such an agreement does amount to approval and must be preceded
by preparation of an EIR. Under the circumstances of this case, we further
conclude the City of West Hollywood’s conditional agreement to sell land for
private development, coupled with financial support, public statements, and other
actions by its officials committing the city to the development, was, for CEQA
purposes, an approval of the project that was required under sections 21100 and
21151 to have been preceded by preparation of an EIR.
FACTUAL AND PROCEDURAL BACKGROUND
The property at 1343 North Laurel Avenue (1343 Laurel) in the City of
West Hollywood (City) is occupied by a large colonial-revival-style house
constructed in 1923, later converted to four apartments, and a chauffeur’s house
and garage. The buildings are set well back from the street and the property is
heavily wooded and landscaped, in contrast to most other properties on the block.
City designated the main house a local cultural resource in 1994. In 1997, Mrs.
Elsie Weisman, the longtime owner of 1343 Laurel, donated it to City on
condition she be permitted to live there until her death and the other tenants be
permitted to occupy the premises for six months after her death. Mrs. Weisman
died in 2000 at the age of 101.2
Two nonprofit community housing developers, West Hollywood
Community Housing Corporation and WASET, Inc., and a corporation they
created for the purpose, Laurel Place West Hollywood, Inc. (collectively, Laurel
Place), propose to develop approximately 35 housing units for low-income seniors
on the 1343 Laurel site. As outlined in a 2003 grant application to the United

2
Whether because of its estate-like appearance or because Gone With the
Wind was Mrs. Weisman’s favorite film, 1343 Laurel has acquired the popular
nickname “Tara.”
2



States Department of Housing and Urban Development (HUD), the project would
preserve the main house but not the chauffeur’s house or garage. The existing
two-story house would be converted to hold the manager’s apartment, one
resident’s apartment, and communal space, including a multipurpose room, arts
and crafts room, television lounge and kitchen. A new three-story building,
wrapping around the existing house’s back and sides, would contain 33 one-
bedroom apartments and underground parking spaces for residents. Between the
back of the existing house and the new building would be a landscaped courtyard.
A 2,800-square-foot portion of the existing front yard would remain in City’s
hands and be used as a pocket park. The HUD application included preliminary
architectural drawings showing the proposed renovation, new building, site plan
and landscaping.
On June 9, 2003, to facilitate Laurel Place’s HUD grant application, City’s
city council granted Laurel Place an option to purchase the 1343 Laurel property,
allowing the developer to show HUD it had control of the project site. In a
June 10 letter to a HUD official, City’s city manager outlined City’s intended
contribution to the proposed project: “To make the project competitive, [City] has
approved the sale of the property at negligible cost.” More specifically, City
planned to contribute $1.5 million in land value. “In addition, [City] will commit
additional funding, in an amount not to exceed $1 million,” toward development
costs. “In summary, [City] will be contributing land and funds totaling $2,500,000
toward the development of the Laurel Place project.”
HUD approved a $4.2 million grant to Laurel Place in late 2003. City’s
mayor announced the grant in a December 2003 e-mail to residents, explaining it
“will be used to build 35 affordable senior residential units, rehabilitate an historic
house, and provide a public pocket park on Laurel Avenue.” He described the
project as “a win-win-win for the City, balancing desperately needed affordable
3

senior housing with historic preservation and open space.” Similarly, a City
newsletter announced that with the recent HUD grant, City and Laurel Place “will
redevelop the property” to rehabilitate the main house, build 35 units of low-
income senior housing, and create a pocket park. The mayor’s announcement
referred residents with questions about the proposed development to Jeffrey
Skornick, City’s housing manager.
Shortly after the HUD grant was approved, in November 2003, Skornick
wrote to a 1343 Laurel tenant, Allegra Allison, reassuring her that “nothing is
going to happen for about a year” and that “[a]s the project proceeds and prior to
construction” the tenants would receive professional relocation assistance. While
he knew she would prefer to stay at 1343 Laurel, the housing manager wrote, he
pledged, on City’s behalf, to “do everything in our power to minimize the impact
of this project on you.” In December 2003, Allison responded that “your
relocation people” had already contacted tenants and, according to one tenant, had
said they would soon be served with “one year eviction notices.”
In January 2004, Skornick, responding to a resident critical of the proposed
development, explained that the project would retain the historic house and most
of the property’s front yard, as the new building would be to the rear of the site.
He continued: “We are happy to consider variations on the approach. However,
inasmuch as the City and its development partners have been awarded a $4.2
million federal grant to help develop this project for senior housing, we must
continue on a path that fulfills this obligation.” In another January 2004 e-mail to
a resident, a city council member’s deputy used the same language, referring to the
development of senior housing on the site as an “obligation” City “must” pursue.
On April 23, 2004, City announced the city council would consider, at its
May 3 meeting, an agreement to facilitate development of the 1343 Laurel project,
“subject to environmental review” and other regulatory approvals. Save Tara, an
4

organization of City residents and neighbors opposed to the project, wrote City to
urge that it conduct CEQA review, including an EIR, before approving any new
agreement, making a loan, or renewing the purchase option. Despite that and
numerous other objections voiced at the meeting (many also expressed support),
the city council on May 3, 2004, voted to (1) approve a “Conditional Agreement
for Conveyance and Development of Property” between City and Laurel Place,
including a $1 million City loan to the developer, in order to “facilitate
development of the project and begin[] the process of working with tenants to
explore relocation options”; (2) authorize the city manager to execute the
agreement “substantially in the form attached”; and (3) have appropriate City
commissions review “alternative configurations” for the planned new building and
obtain more public input “on the design of project elements.”
The “Conditional Agreement for Conveyance and Development of
Property” the city council thus approved and authorized the city manager to
execute (the May 3 draft agreement) had the stated purpose of “caus[ing] the reuse
and redevelopment of [1343 Laurel] with affordable housing for seniors and a
neighborhood pocket park, while retaining the historic integrity of the Site.” The
agreement provided that “upon satisfaction of the conditions of this Agreement,”
City would convey the property to Laurel Place and provide the developer a loan,
and Laurel Place would construct 35 units of housing, one for the resident
manager and 34 restricted to occupancy by low-income seniors. In the first phase
of actions under the agreement, Laurel Place would obtain final HUD approval,
“complete the relocation of tenants”3 and take actions necessary “to comply with

3
A staff report on the proposed agreement, presented to the city council,
explained that relocation notices would be sent “shortly after” the agreement was
executed, starting a one-year period for relocating the tenants.
5



CEQA . . . .” Once the property was conveyed, the second, construction phase
would begin.
Under the May 3 draft agreement, City’s obligation to convey the property
and make the improvement portion of the loan (i.e., all of the $1 million loan other
than the predevelopment portion and an earlier grant for $20,000) was subject to
several conditions precedent, among them that “[a]ll applicable requirements of
CEQA . . . have been satisfied, as reasonably determined by the City Manager”
and that “[d]eveloper shall have obtained all Entitlements.”4 The city manager,
however, could waive these conditions. The predevelopment portion of the loan,
which City estimated at $475,000, was to be used for, inter alia, “environmental
reports” and “governmental permits and fees” and was not subject to the CEQA
compliance or entitlement conditions.
A “Scope of Development” discussion attached to the May 3 draft
agreement explained that “[a] three- or four-story building over semi-subterranean
parking will be erected at the west-rear portion of the lot, replacing what are
currently the garage and outdoor parking area, and possibly the chauffeur’s
quarters.” The new building’s exterior and interior design were described in some
detail.
At the city council’s May 3, 2004, meeting, the project architect explained
that the exact building design had not yet been determined and that historic
preservation values would be fully considered in the final design. For example,
the chauffeur’s house could be preserved, while still adding 35 housing units, by

4
The May 3 draft agreement defined “Entitlements” to include zoning
changes, general plan amendments, and CEQA compliance, as well as any other
permit or license required by City.
6



making the new building four stories rather than three, though the architect for
aesthetic reasons preferred a three-story building.
Skornick, City’s housing manager, similarly told the council that the further
planning processes the project would undergo were “not a rubber stamp,” as there
were “real options to consider” regarding the design of the new building and park.
At the same time, Skornick noted that staff had already rejected the alternative
uses of 1343 Laurel suggested in public comments, such as dedication of the entire
property for a park or use of the historic home as a library or cultural center.
These alternatives, Skornick explained, failed to contribute to City’s affordable
housing goals and, in any event, “there were no funds available for those options.”
Finally, Skornick stressed that “while the agreement is conditional, the council
needs to know that the recommended actions will commit the city as long as the
developer delivers.”
On July 12, 2004, Save Tara filed the operative complaint and petition for
writ of mandate alleging, inter alia, that City had violated CEQA by failing to
prepare an EIR before the city council’s May 3 approval of the loan and draft
agreement. On August 9, 2004, City and Laurel Place executed a revised
agreement (the August 9 executed agreement).5 This agreement followed the
May 3 draft agreement in many respects, but contained some potentially

5
Save Tara argues the administrative record should not have been
augmented with the August 9 executed agreement, as its execution took place after
the decision Save Tara has challenged, i.e., the city council’s approval of the
May 3 draft agreement. We agree with the Court of Appeal, however, that
“[w]hile the May 2004 agreement is relevant for certain purposes, review of City’s
decision would be ineffective, if it were limited to the May 2004 Agreement,
which is no longer operative.” Like the lower court, we treat Save Tara’s petition
for writ of mandate as amended to address the August 9 executed agreement as
well as the May 3 draft agreement.
7



significant changes. The requirement that all applicable CEQA requirements be
satisfied could no longer be waived by the city manager, and the parties expressly
recognized City retained “complete discretion over . . . any actions necessary to
comply with CEQA” and that the agreement “imposes no duty on City to approve
. . . any documents prepared pursuant to CEQA.” Finally, details on tenant
relocation were stated, including that the developer was to begin the process by
hiring a relocation consultant within 30 days.
The superior court denied Save Tara’s mandate petition, finding that while
the parties agreed the 1343 Laurel project did call for an EIR at some time, none
was required before approving the May 3 draft agreement because “the Agreement
is expressly conditioned on compliance with CEQA . . . [and] does not limit the
project alternatives or possible mitigation measures.” Thus, City “has not given its
final approval to convey the property at issue to [Laurel Place], nor has it given its
final approval of the housing project itself.”
The Court of Appeal reversed. Section 21100, the appellate court reasoned,
requires an EIR be prepared whenever lead agencies “propose to approve or carry
out” a project with potential significant effects; it is not, contrary to the trial
court’s holding, “to be delayed until a ‘final’ decision has been made.” Moreover,
conditioning a development agreement on CEQA compliance is insufficient
because the EIR review process “is intended to be part of the decisionmaking
process itself, and not an examination, after the decision has been made, of the
possible environmental consequences of the decision.” Any question as to
whether a particular point in the development process is too early for preparation
of an EIR “is resolved by the pragmatic inquiry whether there is enough
information about the project to permit a meaningful environmental assessment. If
the answer is yes, the EIR review process must be initiated.” Before May 3, 2004,
the Court of Appeal held, the project was well enough defined to permit
8

meaningful environmental analysis, which City should have performed between
the award of the HUD grant in November 2003 and the approval of the May 3
draft agreement.
As remedy for the CEQA violation, the Court of Appeal remanded with
directions that City be ordered (1) to void its approval of the May 3 and August 9
agreements, and (2) to “engage in the EIR review process (a) based on the project
as described in the HUD application and (b) without reference to the May and
August 2004 Agreements.” One justice dissented, arguing the matter was moot
because, according to the parties, City had certified a final EIR for the project in
October 2006.
We granted City’s and Laurel Place’s petitions for review, which presented
the mootness issue as well as the substantive question of whether an EIR was
required before City’s approval of the conditional development agreement.
DISCUSSION
I. Mootness
According to the Court of Appeal decision, City approved a final EIR for
the 1343 Laurel project in October 2006, during pendency of the appeal. All
parties agree on this chronology and further agree that Save Tara has not
challenged the adequacy of this EIR in court.
The parties dispute whether these events rendered the present appeal moot.
City and Laurel Place take the position that Save Tara has already received the
relief it seeks in this action — preparation and certification of an EIR — and no
further effective relief can be granted it. They cite CEQA cases in which, during
pendency of the litigation, the project site had undergone irreversible physical or
legal changes. (See, e.g., Environmental Coalition of Orange County, Inc. v.
Local Agency Formation Com. (1980) 110 Cal.App.3d 164, 171-173 [challenge to
9

EIR for annexation moot where annexation had already occurred and could not be
ordered annulled because annexing city was not a party to the action]; Hixon v.
County of Los Angeles (1974) 38 Cal.App.3d 370, 378 [street improvement project
involving tree replacement had already progressed to removal of original trees,
which could not be restored].) Save Tara, in turn, argues that effective relief, in
the form of an order setting aside City’s approval of the May 3 draft agreement
and August 9 executed agreement, can still be awarded, as it was by the Court of
Appeal. It cites CEQA cases that were held not to be moot despite some
intervening progress on the project. (See, e.g., Bakersfield Citizens for Local
Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1202-1204 [partial
construction of a project did not moot the appeal, as the project could still be
modified, reduced, or mitigated]; Woodward Park Homeowners Assn. v. Garreks,
Inc. (2000) 77 Cal.App.4th 880, 888 [already constructed project could be
modified or removed].)
We agree with Save Tara that the preparation and certification of an EIR
does not render the appeal moot. No irreversible physical or legal change has
occurred during pendency of the action, and Save Tara can still be awarded the
relief it seeks, an order that City set aside its approvals. As will appear, we
ultimately conclude the matter must be remanded with directions that the superior
court order City to void its approval of the May 3 and August 9 agreements and
reconsider those decisions, informed this time by an EIR of the full environmental
consequences. Neither City nor Laurel Place contends such reconsideration is
impossible as a practical matter or that the superior court lacks the power to order
it. Such an order remedies the CEQA violation Save Tara alleges occurred,
approval of the agreements without prior preparation and consideration of an EIR,
and thus constitutes effective relief.
10

II. Timing of EIR Preparation
We turn to the substantive CEQA issue presented: Was City required to
prepare and consider an EIR before approving the conveyance and development
agreement on May 3 and executing the revised agreement on August 9, 2004? To
answer this question, we first outline, in this part of the opinion, the existing law
on timing of EIR preparation and the legislative policies that shape this law. We
next address, in part III, the general question of whether an agency may delay EIR
preparation by making its final approval of a project contingent on subsequent
CEQA compliance, while otherwise agreeing to go forward with the project. In
part IV, we apply our conclusions to the facts of this case to determine that City’s
May 3 and August 9 actions constituted project approval requiring prior
preparation of an EIR.
We begin with CEQA’s text. Section 21100, subdivision (a) provides in
pertinent part: “All lead agencies shall prepare, or cause to be prepared by
contract, and certify the completion of, an environmental impact report on any
project which they propose to carry out or approve that may have a significant
effect on the environment.” (Italics added.) To the same effect, section 21151
provides that “local agencies shall prepare, or cause to be prepared by contract,
and certify the completion of, an environmental impact report on any project that
they intend to carry out or approve which may have a significant effect on the
environment.” (Italics added.)6

6
Both sections appear applicable to City. Section 21151 applies to local
governments by its terms. Section 21100, although placed in a chapter of CEQA
mainly addressing the duties of state agencies, itself applies to all “lead agencies,”
a term that includes local public entities undertaking projects subject to CEQA.
(See §§ 21067 [“ ‘Lead agency’ means the public agency which has the principal
responsibility for carrying out or approving a project which may have a significant
effect upon the environment”], 21063 [“ ‘Public agency’ includes any state

(footnote continued on next page)
11



While the statutes do not specify criteria for determining when an agency
“approve[s]” a project, the law’s implementing regulations, the CEQA Guidelines
(Cal. Code Regs., tit. 14, § 15000 et seq.),7 do address the question. Section
15352 of the CEQA Guidelines provides as follows:
“(a) ‘Approval’ means the decision by a public agency which commits the
agency to a definite course of action in regard to a project intended to be carried
out by any person. The exact date of approval of any project is a matter
determined by each public agency according to its rules, regulations, and
ordinances. Legislative action in regard to a project often constitutes approval.
“(b) With private projects, approval occurs upon the earliest commitment to
issue or the issuance by the public agency of a discretionary contract, grant,
subsidy, loan, or other form of financial assistance, lease, permit, license,
certificate, or other entitlement for use of the project.” (Cal. Code Regs., tit. 14,
§ 15352, subds. (a), (b).)
CEQA Guidelines section 15004, subdivision (b) observes that “[c]hoosing
the precise time for CEQA compliance involves a balancing of competing factors.
EIRs and negative declarations should be prepared as early as feasible in the
planning process to enable environmental considerations to influence project

(footnote continued from previous page)
agency, board, or commission, any county, city and county, city, regional agency,
public district, redevelopment agency, or other political subdivision”].)
7
“The CEQA Guidelines, promulgated by the state’s Resources Agency, are
authorized by Public Resources Code section 21083. In interpreting CEQA, we
accord the Guidelines great weight except where they are clearly unauthorized or
erroneous.” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of
Rancho Cordova
(2007) 40 Cal.4th 412, 428, fn. 5.)
12



program and design and yet late enough to provide meaningful information for
environmental assessment.” (Cal. Code Regs., tit. 14, § 15004, subd. (b).)8
This court has on several occasions addressed the timing of environmental
review under CEQA, emphasizing in each case the same policy balance outlined
in CEQA Guidelines section 15004, subdivision (b). In No Oil, Inc. v. City of Los
Angeles (1974) 13 Cal.3d 68 (No Oil, Inc.), discussing whether the proper scope of
an EIR included possible related future actions, we quoted this observation from a
federal decision: “ ‘Statements must be written late enough in the development
process to contain meaningful information, but they must be written early enough
so that whatever information is contained can practically serve as an input into the
decision making process.’ ” (Id. at p. 77, fn. 5.) We again quoted this formulation
of the general issue in Fullerton Joint Union High School Dist. v. State Bd. of
Education (1982) 32 Cal.3d 779 (Fullerton), which considered whether a
particular action was a “project” for CEQA purposes, adding, with what has turned

8
The parties’ briefs frame the timing issue here in two ways: (1) Did City,
in May and August of 2004, approve the 1343 Laurel project? and (2) Was the
contingent agreement to convey and develop 1343 Laurel itself a project? While
this opinion will discuss some relevant decisions on the definition of a project, it
largely follows the first formulation, asking whether City approved the project. As
section 15378 of the CEQA Guidelines explains: “(a) ‘Project’ means the whole
of an action, which has the potential for resulting in [an environmental change.]
[¶] . . . [¶] (c) The term ‘project’ refers to the activity which is being approved and
which may be subject to several discretionary approvals by government agencies.
The term ‘project’ does not mean each separate government approval.” (Cal.
Code Regs., tit. 14, § 15378.) The “project” in this case is the redevelopment of
1343 Laurel, not any of the individual steps City took to approve it. City and
Laurel Place do not dispute the redevelopment of 1343 Laurel is a project
requiring evaluation in an EIR; they disagree with Save Tara only on the required
timing of that EIR process.
13



out to be an understatement, that “[t]he timing of an environmental study can
present a delicate problem.” (Fullerton, at p. 797.)
In Laurel Heights Improvement Assn. v. Regents of University of California
(1988) 47 Cal.3d 376 (commonly known as Laurel Heights I), again discussing the
proper scope of an EIR regarding future actions, we summed up the issue and
attempted to state a rule, as follows: “We agree that environmental resources and
the public fisc may be ill served if the environmental review is too early. On the
other hand, the later the environmental review process begins, the more
bureaucratic and financial momentum there is behind a proposed project, thus
providing a strong incentive to ignore environmental concerns that could be dealt
with more easily at an early stage of the project. . . . For that reason, ‘ “EIRs
should be prepared as early in the planning process as possible to enable
environmental considerations to influence project, program or design.” ’ ” (Id. at
p. 395.)9 We also observed that at a minimum an EIR must be performed before a
project is approved, for “[i]f postapproval environmental review were allowed,
EIR’s would likely become nothing more than post hoc rationalizations to support
action already taken.” (Laurel Heights I, at p. 394.)
This court, like the CEQA Guidelines, has thus recognized two
considerations of legislative policy important to the timing of mandated EIR
preparation: (1) that CEQA not be interpreted to require an EIR before the project
is well enough defined to allow for meaningful environmental evaluation; and

9
In the recent decision of Vineyard Area Citizens for Responsible Growth,
Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at page 441, discussing the
extent to which a large housing project’s EIR was required to address water
sources for the project’s later phases, we reiterated Laurel Heights I’s admonition
that environmental analysis not be delayed to the point where “ ‘bureaucratic and
financial momentum’ ” rendered it practically moot.
14



(2) that CEQA not be interpreted as allowing an EIR to be delayed beyond the
time when it can, as a practical matter, serve its intended function of informing
and guiding decision makers.
The CEQA Guidelines define “approval” as “the decision by a public
agency which commits the agency to a definite course of action in regard to a
project.” (Cal. Code Regs., tit. 14, § 15352, subd. (a).) The problem is to
determine when an agency’s favoring of and assistance to a project ripens into a
“commit[ment].” To be consistent with CEQA’s purposes, the line must be drawn
neither so early that the burden of environmental review impedes the exploration
and formulation of potentially meritorious projects, nor so late that such review
loses its power to influence key public decisions about those projects.
Drawing this line raises predominantly a legal question, which we answer
independently from the agency whose decision is under review. While judicial
review of CEQA decisions extends only to whether there was a prejudicial abuse
of discretion, “an agency may abuse its discretion under CEQA either by failing to
proceed in the manner CEQA provides or by reaching factual conclusions
unsupported by substantial evidence. (§ 21168.5.) Judicial review of these two
types of error differs significantly: while we determine de novo whether the
agency has employed the correct procedures, ‘scrupulously enforc[ing] all
legislatively mandated CEQA requirements’ (Citizens of Goleta Valley v. Board of
Supervisors (1990) 52 Cal.3d 553, 564), we accord greater deference to the
agency’s substantive factual conclusions.” (Vineyard Area Citizens for
Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at p. 435.)
A claim, like Save Tara’s here, that the lead agency approved a project with
potentially significant environment effects before preparing and considering an
EIR for the project “is predominantly one of improper procedure” (Vineyard Area
Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40
15

Cal.4th at p. 435) to be decided by the courts independently. The claim goes not
to the validity of the agency’s factual conclusions but to the required timing of its
actions. Moreover, as noted above (fn. 8, ante), the timing question may also be
framed by asking whether a particular agency action is in fact a “project” for
CEQA purposes, and that question, we have held, is one of law. (Muzzy Ranch
Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 382;
Fullerton, supra, 32 Cal.3d at p. 795.)10
Considering the timing issue as one of legally proper procedure does not
remove all logistical discretion from agencies; it merely sets an outer limit to how
long EIR preparation may be delayed. To accord overly deferential review of
agencies’ timing decisions could allow agencies to evade CEQA’s central
commands. While an agency may certainly adjust its rules so as to set “[t]he exact
date of approval” (Cal. Code Regs., tit. 14, § 15352, subd. (a)), an agency has no
discretion to define approval so as to make its commitment to a project precede the
required preparation of an EIR.
III. Development Agreements Contingent on CEQA Compliance
The May 3 draft agreement and August 9 executed agreement conditioned
City’s obligation to convey the property to Laurel Place for development on all

10 In
Mount Sutro Defense Committee v. Regents of University of California
(1978) 77 Cal.App.3d 20, 40, the Court of Appeal remarked that “the
determination of the earliest feasible time [for environmental review] is to be
made initially by the agency itself, which decision must be respected in the
absence of manifest abuse.” (Accord, Stand Tall on Principles v. Shasta Union
High Sch. Dist.
(1991) 235 Cal.App.3d 772, 780; see also City of Vernon v. Board
of Harbor Comrs.
(1998) 63 Cal.App.4th 677, 690 [“the timing of an EIR is
committed to the discretion and judgment of the agency”].) To the extent these
opinions contradict our determination that postponement of an EIR until after
project approval constitutes procedural error that is independently reviewable, we
disapprove them.
16



applicable requirements of CEQA having been satisfied. City and Laurel Place
contend such a CEQA compliance condition on an agreement to convey or
develop property eliminates the need for preparation of an EIR (or any other
CEQA document) before an agency approves the agreement. In contrast, Save
Tara, quoting the Court of Appeal, maintains that permitting a CEQA compliance
condition to postpone environmental review until after an agreement on the project
has been reached would render the EIR requirement a “dead letter.” We adopt an
intermediate position: A CEQA compliance condition can be a legitimate
ingredient in a preliminary public-private agreement for exploration of a proposed
project, but if the agreement, viewed in light of all the surrounding circumstances,
commits the public agency as a practical matter to the project, the simple insertion
of a CEQA compliance condition will not save the agreement from being
considered an approval requiring prior environmental review.
As previously noted, the CEQA Guideline defining “approval” states that
“with private projects, approval occurs upon the earliest commitment to issue or
the issuance by the public agency of a discretionary contract, grant, subsidy, loan,
or other form of financial assistance, lease, permit, license, certificate, or other
entitlement for use of the project.” (Cal. Code Regs., tit. 14, § 15352, subd. (b).)11
On its face, this regulatory definition suggests a public agency’s execution of a
contract to convey a property for development would constitute approval of the
development project. City and Laurel Place rely on two decisions holding

11
The guideline derives in part from Public Resources Code section 21065,
which defines “project” as including a private activity supported by public
contracts, grants, or other assistance, or requiring issuance of a public permit,
license, or other entitlement. (Id., subds. (b), (c).)
17



agreements not to be approvals for CEQA purposes when conditioned on later
CEQA compliance.
In Stand Tall on Principles v. Shasta Union High Sch. Dist., supra, 235
Cal.App.3d 772 (Stand Tall), a school district board passed resolutions choosing
the site for a new high school from a group of finalists and authorizing the district
administration to purchase the property; any offer to purchase “was to be made
contingent upon completion of the EIR process and final state approval.” (Id. at
p. 777.) The appellate court rejected a claim the EIR should have been done
before selecting the preferred school site, reasoning that “the Board’s resolutions
regarding the site selection do not constitute an ‘approval’ under CEQA because
they do not commit the District to a definite course of action since they are
expressly made contingent on CEQA compliance.” (Id. at p. 781.)
In Concerned McCloud Citizens v. McCloud Community Services Dist.
(2007) 147 Cal.App.4th 181 (McCloud), a district executed an agreement with a
commercial spring water bottler for exclusive rights to bottle and sell water from
the district’s sources, contingent on, among other things, the district and the bottler
“ ‘completing, during the Contingency Period, proceedings under CEQA in
connection with the Project, and the expiration of the applicable period for any
challenge to the adequacy of District’s and [the bottler’s] compliance with CEQA
without any challenge being filed.’ ” (Id. at p. 188.) Relying in part on Stand
Tall, the McCloud court held no EIR was required before the district executed the
contingent bottling agreement. The agreement was subject to several “ ‘ifs,’ ” the
court reasoned, continuing: “The biggest ‘if’ in the agreement however is if all
discretionary permits, expressly defined as including CEQA documentation,
review and approvals, along with the final adjudication of any legal challenges
based on CEQA, are secured and all environmental, title, physical, water quality
and economic aspects of the project are assessed.” (McCloud, at p. 193.)
18

Without questioning the correctness of Stand Tall and McCloud on their
facts, we note that each case involved particular circumstances limiting the reach
of its logic; neither convinces us a broad rule exists permitting EIR preparation to
be postponed in all circumstances by use of a CEQA compliance condition.
In McCloud, the court relied in part on the agreement’s lack of information
as to the springs that would be exploited, the site of the bottling plant, how the
water would be transported, and other details essential to environmental analysis
of the project. Without that information, the court concluded, “preparation of an
EIR would be premature. Any analysis of potential environmental impacts would
be wholly speculative and essentially meaningless.” (McCloud, supra, 147
Cal.App.4th at p. 197.) In the terms used by the CEQA Guidelines to define
“approval” — “the decision by a public agency which commits the agency to a
definite course of action” (Cal. Code Regs, tit. 14, § 15352, subd. (a)) — McCloud
thus speaks as much to definiteness as to commitment and does not establish that a
conditional agreement for development never constitutes approval of the
development.
Stand Tall, supra, 235 Cal.App.3d 772, involved an agreement to purchase
property, an activity that, as a practical matter in a competitive real estate market,
may sometimes need to be initiated before completing CEQA analysis. The
CEQA Guidelines accommodate this need by making an exception to the rule that
agencies may not “make a decision to proceed with the use of a site for facilities
which would require CEQA review” before conducting such review; the exception
provides that “agencies may designate a preferred site for CEQA review and may
enter into land acquisition agreements when the agency has conditioned the
agency’s future use of the site on CEQA compliance.” (Cal. Code Regs., tit. 14,
§ 15004, subd. (b)(2)(A).) The Guidelines’ exception for land purchases is a
reasonable interpretation of CEQA, but it should not swallow the general rule
19

(reflected in the same regulation) that a development decision having potentially
significant environmental effects must be preceded, not followed, by CEQA
review. (See Laurel Heights I, supra, 47 Cal.3d at p. 394 [“A fundamental
purpose of an EIR is to provide decision makers with information they can use in
deciding whether to approve a proposed project, not to inform them of the
environmental effects of projects that they have already approved”].)
City and Laurel Place apparently would limit the “commit[ment]” that
constitutes approval of a private project for CEQA purposes (Cal. Code Regs.,
tit. 14, § 15352, subd. (a)) to unconditional agreements irrevocably vesting
development rights. In their view, “[t]he agency commits to a definite course of
action . . . by agreeing to be legally bound to take that course of action.” (City of
Vernon v. Board of Harbor Comrs., supra, 63 Cal.App.4th at p. 688.) On this
theory, any development agreement, no matter how definite and detailed, even if
accompanied by substantial financial assistance from the agency and other strong
indications of agency commitment to the project, falls short of approval so long as
it leaves final CEQA decisions to the agency’s future discretion.
Such a rule would be inconsistent with the CEQA Guidelines’ definition of
approval as the agency’s “earliest commitment” to the project. (Cal. Code Regs.,
tit. 14, § 15352, subd. (b), italics added.) Just as CEQA itself requires
environmental review before a project’s approval, not necessarily its final
approval (Pub. Resources Code, §§ 21100, 21151), so the guideline defines
“approval” as occurring when the agency first exercises its discretion to execute a
contract or grant financial assistance, not when the last such discretionary decision
is made.
Our own decisions are to the same effect: we have held an agency
approved a project even though further discretionary governmental decisions
would be needed before any environmental change could occur. (See Muzzy
20

Ranch Co. v. Solano County Airport Land Use Com., supra, 41 Cal.4th at p. 383
[adoption of airport land use plan held to be a project even though it directly
authorized no new development]; Fullerton, supra, 32 Cal.3d at p. 795 [adoption
of school district succession plan held to be a project even though “further
decisions must be made before schools are actually constructed”]; Bozung v. Local
Agency Formation Com. (1975) 13 Cal.3d 263, 279, 282 [regional agency’s
approval of annexation by city held to be a project even though further approvals,
including zoning changes, would be needed for property development to occur].)
Though these decisions framed the question as whether certain agency steps
constituted projects, rather than whether the agency had approved a project, they
stand for the principle that CEQA review may not always be postponed until the
last governmental step is taken.
Moreover, limiting approval to unconditional agreements that irrevocably
vest development rights would ignore what we have previously recognized, that
postponing environmental analysis can permit “bureaucratic and financial
momentum” to build irresistibly behind a proposed project, “thus providing a
strong incentive to ignore environmental concerns.” (Laurel Heights I, supra, 47
Cal.3d at p. 395.)
A public entity that, in theory, retains legal discretion to reject a proposed
project may, by executing a detailed and definite agreement with the private
developer and by lending its political and financial assistance to the project, have
as a practical matter committed itself to the project. When an agency has not only
expressed its inclination to favor a project, but has increased the political stakes by
publicly defending it over objections, putting its official weight behind it, devoting
substantial public resources to it, and announcing a detailed agreement to go
forward with the project, the agency will not be easily deterred from taking
whatever steps remain toward the project’s final approval.
21

For similar reasons, we have emphasized the practical over the formal in
deciding whether CEQA review can be postponed, insisting it be done early
enough to serve, realistically, as a meaningful contribution to public decisions.
(See Fullerton, supra, 32 Cal.3d at p. 797 [“as a practical matter,” school district
succession plan was a project requiring review]; No Oil, Inc., supra, 13 Cal.3d at
p. 77, fn. 5 [“ ‘Statements must be written . . . early enough so that whatever
information is contained can practically serve as an input into the decision making
process’ ”]; see also Citizens for Responsible Government v. City of Albany (1997)
56 Cal.App.4th 1199, 1221 [CEQA review should not be delayed to the point
where it would “call for a burdensome reconsideration of decisions already
made”].) The full consideration of environmental effects CEQA mandates must
not be reduced “ ‘to a process whose result will be largely to generate paper, to
produce an EIR that describes a journey whose destination is already
predetermined.’ ” (Natural Resources Defense Council, Inc. v. City of Los
Angeles (2002) 103 Cal.App.4th 268, 271.)
We note as well that postponing EIR preparation until after a binding
agreement for development has been reached would tend to undermine CEQA’s
goal of transparency in environmental decisionmaking. Besides informing the
agency decision makers themselves, the EIR is intended “to demonstrate to an
apprehensive citizenry that the agency has in fact analyzed and considered the
ecological implications of its actions.” (No Oil, Inc., supra, 13 Cal.3d at p. 86;
accord, Laurel Heights I, supra, 47 Cal.3d at p. 392.) When an agency reaches a
binding, detailed agreement with a private developer and publicly commits
resources and governmental prestige to that project, the agency’s reservation of
CEQA review until a later, final approval stage is unlikely to convince public
observers that before committing itself to the project the agency fully considered
the project’s environmental consequences. Rather than a “document of
22

accountability” (Laurel Heights I, at p. 392), the EIR may appear, under these
circumstances, a document of post hoc rationalization.
On the other hand, we cannot agree with the suggestion of the Court of
Appeal, supported by Save Tara, that any agreement, conditional or unconditional,
would be an “approval” requiring prior preparation of CEQA documentation if at
the time it was made the project was sufficiently well defined to provide
“ ‘meaningful information for environmental assessment.’ ” (Citizens for
Responsible Government v. City of Albany, supra, 56 Cal.App.4th at p. 1221,
quoting Cal. Code Regs., tit. 14, § 15004, subd. (b).) On this theory, once a
private project had been described in sufficient detail, any public-private
agreement related to the project would require CEQA review.
This rule would be inconsistent with the CEQA Guidelines’ definition of
approval as involving a “commit[ment]” by the agency. (Cal. Code Regs., tit. 14,
§ 15352, subd. (a).) Agencies sometimes provide preliminary assistance to
persons proposing a development in order that the proposal may be further
explored, developed or evaluated. Not all such efforts require prior CEQA review.
(See, e.g., Cal. Code Regs., tit. 14, § 15262 [conduct of feasibility or planning
studies does not require CEQA review].) Moreover, privately conducted projects
often need some form of government consent or assistance to get off the ground,
sometimes long before they come up for formal approval. Approval, within the
meaning of Public Resources Code sections 21100 and 21151, cannot be equated
with the agency’s mere interest in, or inclination to support, a project, no matter
how well defined. “If having high esteem for a project before preparing an
environmental impact statement (EIR) nullifies the process, few public projects
would withstand judicial scrutiny, since it is inevitable that the agency proposing a
project will be favorably disposed to it.” (City of Vernon v. Board of Harbor
Comrs., supra, 63 Cal.App.4th at p. 688.)
23

As amicus curiae League of California Cities explains, cities often reach
purchase option agreements, memoranda of understanding, exclusive negotiating
agreements, or other arrangements with potential developers, especially for
projects on public land, before deciding on the specifics of a project. Such
preliminary or tentative agreements may be needed in order for the project
proponent to gather financial resources for environmental and technical studies, to
seek needed grants or permits from other government agencies, or to test interest
among prospective commercial tenants. While we express no opinion on whether
any particular form of agreement, other than those involved in this case,
constitutes project approval, we take the League’s point that requiring agencies to
engage in the often lengthy and expensive process of EIR preparation before
reaching even preliminary agreements with developers could unnecessarily burden
public and private planning. CEQA review was not intended to be only an
afterthought to project approval, but neither was it intended to place unneeded
obstacles in the path of project formulation and development.
In addition to the regulatory definition of “approval” quoted earlier (Cal.
Code Regs., tit. 14, § 15352, subd. (b)), Save Tara relies on Citizens for
Responsible Government v. City of Albany, supra, 56 Cal.App.4th 1199 (Citizens
for Responsible Government) for the principle that an EIR must be prepared before
a public agency executes a detailed agreement for development. In that case, the
city council decided to place before the voters a proposal for development of a
gaming facility at a racetrack; included in the proposal was an agreement with the
private developer setting out details of the proposed facility and its operation. (Id.
at p. 1206.) Although the agreement called for the developer to submit any studies
needed “ ‘to address any potential adverse environmental impact of the Project’ ”
and provided that “ ‘[a]ll reasonably feasible mitigation measures shall become
conditions’ ” of the city’s implementation agreement (id. at pp. 1219-1220), the
24

appellate court held the city council had approved the project, for CEQA purposes,
by putting it on the ballot, and thus the agreed-to environmental analysis came too
late: “[T]he appropriate time to introduce environmental considerations into the
decision making process was during the negotiation of the development
agreement. Decisions reflecting environmental considerations could most easily
be made when other basic decisions were being made, that is, during the early
stage of ‘project conceptualization, design and planning.’ Since the development
site and the general dimensions of the project were known from the start, there
was no problem in providing ‘meaningful information for environmental
assessment.’ At this early stage, environmental review would be an integral part
of the decisionmaking process. Any later environmental review might call for a
burdensome reconsideration of decisions already made and would risk becoming
the sort of ‘post hoc rationalization[] to support action already taken,’ which our
high court disapproved in [Laurel Heights I].” (Citizens for Responsible
Government, at p. 1221.)
Again, without questioning the correctness of this decision on its facts, we
find it falls short of demonstrating a general rule against use of conditional
agreements to postpone CEQA review. The development agreement in Citizens
for Responsible Government, once approved by the voters, vested the developer
with the right to build and operate a card room within particular parameters set out
in the agreement. The city had thus “contracted away its power to consider the
full range of alternatives and mitigation measures required by CEQA” and had
precluded consideration of a “no project” option. (Citizens for Responsible
Government, supra, 56 Cal.App.4th at pp. 1221-1222.) “Indeed, the purpose of a
development agreement is to provide developers with an assurance that they can
complete the project. After entering into the development agreement with [the
25

developer], the City is not free to reconsider the wisdom of the project in light of
environmental effects.” (Id. at p. 1223.)12
Desirable, then, as a bright-line rule defining when an approval occurs
might be, neither of those proposed — the execution of an unconditional
agreement irrevocably vesting development rights, or of any agreement for
development concerning a well-defined project — is consistent with CEQA’s
interpretation and policy foundation. Instead, we apply the general principle that
before conducting CEQA review, agencies must not “take any action” that
significantly furthers a project “in a manner that forecloses alternatives or
mitigation measures that would ordinarily be part of CEQA review of that public
project.” (Cal. Code Regs., tit. 14, § 15004, subd. (b)(2)(B); accord, McCloud,
supra, 147 Cal.App.4th at p. 196 [agreement not project approval because, inter
alia, it “did not restrict the District’s discretion to consider any and all mitigation
measures, including the ‘no project’ alternative”]; Citizens for Responsible
Government, supra, 56 Cal.App.4th at p. 1221 [development agreement was
project approval because it limited city’s power “to consider the full range of
alternatives and mitigation measures required by CEQA”].)
In applying this principle to conditional development agreements, courts
should look not only to the terms of the agreement but to the surrounding

12
Citizens for Responsible Government’s references to a “development
agreement” were to development agreements as described in Government Code
section 65865.2, which allows for only such conditions as “shall not prevent
development of the land for the uses and to the density or intensity of development
set forth in the agreement.” The purpose of such agreements is to give
“[a]ssurance to the applicant for a development project that upon approval of the
project, the applicant may proceed with the project in accordance with existing
policies, rules and regulations . . . .” (Gov. Code, § 65864, subd. (b); see Citizens
for Responsible Government
, supra, 56 Cal.App.4th at pp. 1213-1214.)
26



circumstances to determine whether, as a practical matter, the agency has
committed itself to the project as a whole or to any particular features, so as to
effectively preclude any alternatives or mitigation measures that CEQA would
otherwise require to be considered, including the alternative of not going forward
with the project. (See Cal. Code Regs, tit. 14, § 15126.6, subd. (e).) In this
analysis, the contract’s conditioning of final approval on CEQA compliance is
relevant but not determinative.
A frequently cited treatise on CEQA (Remy et al., Guide to the Cal.
Environmental Quality Act (CEQA) (11th ed. 2006)) summarizes this approach in
a useful manner. “First, the analysis should consider whether, in taking the
challenged action, the agency indicated that it would perform environmental
review before it makes any further commitment to the project, and if so, whether
the agency has nevertheless effectively circumscribed or limited its discretion with
respect to that environmental review. Second, the analysis should consider the
extent to which the record shows that the agency or its staff have committed
significant resources to shaping the project. If, as a practical matter, the agency
has foreclosed any meaningful option to going forward with the project, then for
purposes of CEQA the agency has ‘approved’ the project.” (Id. at p. 71.) As this
passage suggests, we look both to the agreement itself and to the surrounding
circumstances, as shown in the record of the decision, to determine whether an
agency’s authorization or execution of an agreement for development constitutes a
“decision . . . which commits the agency to a definite course of action in regard to
a project.” (Cal. Code Regs., tit. 14, § 15352.)
Our analysis does not require CEQA analysis before a definite project has
been formulated and proposed to the agency. An agency cannot be deemed to
have approved a project, within the meaning of Public Resources Code sections
21100 and 21151, unless the proposal before it is well enough defined “to provide
27

meaningful information for environmental assessment.” (Cal. Code Regs., tit. 14,
§ 15004, subd. (b).) Moreover, when the prospect of agency commitment
mandates environmental analysis of a large-scale project at a relatively early
planning stage, before all the project parameters and alternatives are reasonably
foreseeable, the agency may assess the project’s potential effects with
corresponding generality. With complex or phased projects, a staged EIR (Cal.
Code Regs., tit. 14, § 15167) or some other appropriate form of tiering (see In re
Bay-Delta et al. (2008) 43 Cal.4th 1143, 1170; Vineyard Area Citizens for
Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at p. 431)
may be used to postpone to a later planning stage the evaluation of those project
details that are not reasonably foreseeable when the agency first approves the
project.
IV. Application to City’s Decisions
We turn finally to whether the city council’s approval of the draft
agreement on May 3, 2004, and the city manager’s execution of the revised
agreement on August 9 of the same year constituted approval of the 1343 Laurel
project for purposes of sections 21100 and 21151. From the agreements and the
surrounding circumstances, we conclude City did approve the 1343 Laurel project
in substance, though it reserved some of the project’s design details for later
environmental analysis and final decision.
The contract between City and Laurel Place demonstrates City’s
commitment to the project. Both the May 3 draft and the August 9 executed
agreements forthrightly stated their purpose was to “cause the reuse and
redevelopment” of 1343 Laurel in accordance with the project as outlined in the
agreements and in the earlier HUD grant application. The city council’s May 3
28

resolution, similarly, stated the intent to “facilitate development of the project” —
while allowing further public input on “the design of project elements.”
In both versions of the agreement, moreover, City agreed to initially lend
the developer nearly half a million dollars, a promise not conditioned on CEQA
compliance. This predevelopment portion was to be advanced in the first phase of
the agreement’s performance, before EIR approval and issuance of other final
approvals, and was to be repaid from project receipts over a period of up to
55 years. If City did not give final approval to the project, therefore, it would not
be repaid. For a relatively small government like City’s, this was not a trivial
outlay, and it would be wasted unless City gave final approval to the project in
some form.
While both versions of the agreement conditioned conveyance of the
property and disbursement of the second half of the loan on CEQA compliance,
among other conditions, the May 3 draft agreement significantly circumscribed
City’s remaining authority in this regard. Under the draft agreement, whether
CEQA requirements had been met was to be “reasonably determined by the City
Manager,” language that could have left City open to charges it acted
unreasonably, had it ultimately declined to certify the EIR or make any needed
CEQA findings.
In addition, the May 3 draft agreement, in setting the condition that all
“requirements of CEQA” be “satisfied,” arguably left open the question whether
City remained free to find that the EIR was legally adequate and yet to reject the
project on substantive environmental grounds. An EIR that “satisfies” CEQA
“requirements” may nonetheless demonstrate the project carries with it significant
immitigable adverse effects. The May 3 draft agreement’s condition does not
clearly encompass the possibility that in such a situation City could decline to find,
29

pursuant to section 21081, subdivision (b), that the project’s benefits outweigh
such immitigable effects.
Finally, the May 3 draft agreement had no provision for appealing to the
city council the city manager’s decision on, or waiver of, CEQA compliance.
Such a delegation of the council’s authority was itself an impermissible attempt to
approve the project without prior CEQA review. (See Sundstrom v. County of
Mendocino (1988) 202 Cal.App.3d 296, 307 [permit condition requiring applicant
to submit environmental study to the planning commission and adopt any
mitigation measures formulated by commission staff was an improper delegation
of CEQA responsibility to staff and an impermissible postponement of
environmental review].)
After Save Tara sued, alleging some of these same flaws in the May 3 draft
agreement, City staff revised the agreement to repair them. Under the August 9
executed agreement, the city manager no longer had authority to determine or
waive CEQA compliance, and City’s “complete discretion” over CEQA matters
was expressly acknowledged. But the city council had already approved the
May 3 draft agreement, by which it had shown a willingness to give up further
authority over CEQA compliance in favor of dependence on the city manager’s
determination. Given that history, as well as the other circumstances discussed
below, City’s “apprehensive citizenry” (No Oil, Inc., supra, 13 Cal.3d at p. 86)
could be forgiven if they were skeptical as to whether the city council would give
adverse impacts disclosed in the EIR full consideration before finally approving
the project.
Circumstances surrounding City’s approval of the agreements confirm
City’s commitment to the 1343 Laurel project. In aid of Laurel Place’s HUD
grant application, the city manager told the federal agency City “has approved the
sale of the property” and “will commit” up to $1 million in financial aid. Once the
30

grant was awarded, City’s mayor announced it “will be used” for Laurel Place’s
project, and the City newsletter stated that, using the grant, City and Laurel Place
“will redevelop the property.” City officials told residents who opposed the
project that while “variations” on the proposal would be entertained, City “must
continue on a path that fulfills this obligation” to redevelop the property for senior
housing. Similarly, at the May 3, 2004, city council meeting, City’s housing
manager stated that while there were “options to consider” regarding project
design, options for other uses of the property (as a park, library, or cultural center)
had already been ruled out.13
Finally, City proceeded with tenant relocation on the assumption the
property would be redeveloped as in the proposed project. After HUD awarded
the grant, City’s housing manager told a tenant that she would be relocated,
though not for a year or so. Around the same time, other tenants reported being
contacted by relocation consultants, who told them they would soon be given one-
year notices. As part of its May 3, 2004, resolution, the city council authorized the
predevelopment loan in order to, among other things, “begin the process of
working with tenants to explore relocation options.” The May 3 draft and

13
At oral argument, counsel for City and Laurel Place urged strenuously that
expressions of enthusiasm for a project by an agency’s staff members should not
be confused with official approval of a project. We agree. In isolation, such
statements could rarely, if ever, be deemed approvals for CEQA purposes. Here,
of course, we weigh statements by City officials not in isolation but as one
circumstance shedding light on the degree of City’s commitment when it approved
the May 3 and August 9 agreements. It bears noting, as well, that one of the
statements upon which we rely was a communication from City’s mayor, another
appeared in an official City newsletter, and others were from City’s housing
manager, who, having been named in the mayor’s announcement as the contact
person for residents with questions about the proposed development, had apparent
authority to speak for City on this topic.
31



August 9 executed agreements provided that Laurel Place would “complete the
relocation of tenants” in the agreement’s first performance phase, that is, before
final project approval was given and the property conveyed to Laurel Place. A
staff report on the May 3 draft agreement stated that relocation notices, with a one-
year period, would be sent shortly after the agreement was executed. The
August 9 executed agreement further specified the process was to begin within 30
days.
Relocation of tenants is a significant step in a redevelopment project’s
progress, and one that is likely to be irreversible. City’s willingness to begin that
process as soon as the conditional development agreement was executed, and to
complete it before certifying an EIR and finally approving the project, tends
strongly to show that City’s commitment to the 1343 Laurel project was not
contingent on review of an EIR.
In summary, City’s public announcements that it was determined to
proceed with the development of low-income senior housing at 1343 Laurel, its
actions in accordance with that determination by preparing to relocate tenants
from the property, its substantial financial contribution to the project, and its
willingness to bind itself, by the May 3 draft agreement, to convey the property if
the developer “satisfied” CEQA’s “requirements, as reasonably determined by the
City Manager,” all demonstrate that City committed itself to a definite course of
action regarding the project before fully evaluating its environmental effects. That
is what sections 21110 and 21151 prohibit.
CONCLUSION
For the reasons given above, we agree with the Court of Appeal that City
must be ordered to “declare void its approval of the May and August 2004
Agreements” and to reconsider those decisions in light of a legally adequate EIR
for the project. (See § 21168.9, subd. (a)(1).) If that reconsideration leads to
32

approval of the project, City must make any appropriate findings under section
21081.
Unlike the Court of Appeal, however, we do not believe City necessarily
must prepare a new EIR before reconsidering its approval of the project. The
parties agree City certified a final EIR for the project in 2006, during pendency of
this appeal, and Save Tara did not judicially challenge that EIR’s legal adequacy.
Under section 21167.2, the 2006 EIR is conclusively presumed to comply with
CEQA’s standards unless a subsequent or supplemental environmental EIR is
needed for any of the reasons set out in section 21166 (discussed below).
The 2006 EIR was prepared after City approved the May 3 and August 9,
2004, agreements, which approvals must be now vacated. To the extent the 2006
EIR’s discussion of project alternatives and mitigation measures was premised on
City’s 2004 approvals, that discussion may need revision. Moreover, by the time
of our remand more than two years will have passed since the EIR was certified in
October 2006. Because of both these factors, it is possible that “[s]ubstantial
changes [have] occur[red] with respect to the circumstances under which the
project is being undertaken which will require major revisions in the
environmental impact report” or that “[n]ew information, which was not known
and could not have been known at the time the environmental impact report was
certified as complete, [has] become[] available.” (Pub. Resources Code, § 21166,
subds. (b), (c); see also Cal. Code Regs., tit. 14, §§ 15162, 15163 [subsequent and
supplemental EIR’s].) Whether this is so must be decided in the first instance by
City and reviewed by the superior court on a substantial evidence standard. (See
Santa Teresa Citizen Action Group v. City of San Jose (2003) 114 Cal.App.4th
689, 704.)
33

This matter must therefore be returned to the superior court for that court
(1) to order City to set aside its prior approval of the project; (2) if City decides no
subsequent or supplemental EIR is required under section 21166, to review that
decision; and (3) to make any other order necessary and proper under section
21168.9.
DISPOSITION
The judgment of the Court of Appeal is affirmed in part and reversed in
part. The matter is remanded to the Court of Appeal for further proceedings
consistent with our opinion.
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

34



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Save Tara v. City of West Hollywood
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 147 Cal.App.4th 1091
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S151402
Date Filed: October 30, 2008
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Ernest M. Hiroshige

__________________________________________________________________________________

Attorneys for Appellant:

Chatten-Brown & Carstens, Jan Chatten-Brown, Douglas P. Carstens, Katherine A. Trisolini and Amy C.
Minteer for Plaintiff and Appellant.

Law Offices of Michael W. Stamp and Michael W. Stamp for Save Our Carmel River and The Open
Monterey Project as Amici Curiae on behalf of Plaintiff and Appellant.

Frank G. Wells Environmental Law Clinic, Sean B. Hecht; Neighborhood Legal Services of Los Angeles
County, David Pallack and Joshua Stehlik for Lincoln Place Tenants Association, People for Parks, Sierra
Club and Trudy Saposhnek as Amicus Curiae on behalf of Plaintiff and Appellant.

Shute, Mihaly & Weinberger, Rachel B. Hooper, Amy J. Bricker, Michelle W. Anderson; Law Offices of
Donald B. Mooney and Donald B. Mooney for Environmental Defense Center, California Preservation
Foundation, Planning and Conservation League and Natural Resources Defense Council as Amici Curiae
on behalf of Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Jenkins & Hogin, Michael Jenkins, John C. Cotti and Christi Hogin for Defendant and Respondent.

Aleshire & Wynder, David Aleshire and Joseph W. Pannone for League of California Cities as Amicus
Curiae on behalf of Defendant and Respondent.

Truman & Elliott, Kathleen O’Prey Truman and Todd Elliott for Housing California and Southern
California Association of Nonprofit Housing as Amici Curiae on behalf of Defendant and Respondent.

Latham & Watkins, James L. Arnone, Stephanie E. Ord, Ernest J. Hahn and Benjamin J. Hanelin for Real
Parties in Interest and Respondents.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Jan Chatten-Brown
Chatten-Brown & Carstens
2601 Ocean Park Boulevard, Suite 205
Santa Monica, CA 90405-3219
(310) 314-8040

Michael Jenkins
Jenkins & Hogin
1230 Rosecrans Avenue, Suite 110
Manhattan Beach, CA 90266-2436
(310) 643-8448

James L. Arnone
Latham & Watkins
633 West Fifth street, Suite 4000
Los Angeles, CA 90071-2007
(213) 485-1234


Petition for review after the Court of Appeal affirmed in part and reversed in part the judgment in an action for writ of administrative mandate. This case includes the following issue: Does an agreement between agencies that describes a proposal in detail but expressly withholds any commitment to a definite course of action and is conditioned upon compliance with the California Environmental Quality Act (Pub. Resources Code, section 21000 et seq.) constitute "approval" of a "project" necessitating environmental impact review under the Act?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Thu, 10/30/200845 Cal. 4th 116, 194 P.3d 344, 84 Cal. Rptr. 3d 614S151402Review - Civil Original Proceedingclosed; remittitur issued

Parties
1City Of West Hollywood (Defendant and Respondent)
Represented by Christi Hogin
Jenkins & Hogin, LLP
1230 Rosecrans Avenue, Suite 110
Manhattan Beach, CA

2City Of West Hollywood (Defendant and Respondent)
Represented by John Christophe Cotti
Jenkins & Hogin, LLP
1230 Rosecrans Avenue, Suite 110
Manhattan Beach, CA

3City Of West Hollywood (Defendant and Respondent)
Represented by Michael Jenkins
Jenkins & Hogin, LLP
1230 Rosecrans Avenue, Suite 110
Manhattan Beach, CA

4Waset, Inc. (Real Party in Interest and Respondent)
Represented by James Lorenzo Arnone
Latham & Watkins
355 S. Grand Avenue, Suite 100
Los Angeles, CA

5Waset, Inc. (Real Party in Interest and Respondent)
Represented by Benjamin Jacob Hanelin
Latham & Watkins
355 S. Grand Avenue, Suite 100
Los Angeles, CA

6Save Tara (Plaintiff and Appellant)
Represented by Jan Chatten-Brown
Chatten-Brown & Carstens
2601 Ocean Park Blvd #205
Santa Monica, CA

7Save Tara (Plaintiff and Appellant)
Represented by Katherine Antonia Trisolini
Chatten-Brown & Carstens
2601 Ocean Park Blvd #205
Santa Monica, CA

8West Hollywood Community Housing Corporation (Real Party in Interest and Respondent)
Represented by Benjamin Jacob Hanelin
Latham & Watkins
355 S. Grand Avenue, Suite 100
Los Angeles, CA

9West Hollywood Community Housing Corporation (Real Party in Interest and Respondent)
Represented by James Lorenzo Arnone
Latham & Watkins
355 S. Grand Avenue, Suite 100
Los Angeles, CA

10Laurel Place West Hollywood, Inc. (Real Party in Interest and Respondent)
Represented by James Lorenzo Arnone
Latham & Watkins
355 S. Grand Avenue, Suite 100
Los Angeles, CA

11Laurel Place West Hollywood, Inc. (Real Party in Interest and Respondent)
Represented by Benjamin Jacob Hanelin
Latham & Watkins
355 S. Grand Avenue, Suite 100
Los Angeles, CA

12League Of California Cities (Amicus curiae)
Represented by David J. Aleshire
Aleshire & Wynder, LLP
18881 Von Karman Avenue, Suite 400
Irvine, CA

13League Of California Cities (Amicus curiae)
Represented by Joseph W. Pannone
Aleshire & Wynder, LLP
18881 Von Karman Avenue, Suite 400
Irvine, CA

14Save Our Carmel River And The Open Monterey Project (Amicus curiae)
Represented by Michael W. Stamp
Attorney at Law
479 Pacific Street, Suite 1
Monterey, CA

15Planning & Conservation League (Amicus curiae)
Represented by Donald B. Mooney
Attorney at Law
129 "C" Street, Suite 2
Davis, CA

16Lincoln Place Tenants Association (Amicus curiae)
Represented by Sean B. Hecht
UCLA School of Law
405 Hilgard Avenue
Los Angeles, CA

17Housing California (Amicus curiae)
Represented by Kathleen O'Prey Truman
Truman & Elliott, LLP
626 Wilshire Boulevard, Suite 550
Los Angeles, CA

18Housing California (Amicus curiae)
Represented by Todd Elliott
Truman & Elliott, LLP
626 Wilshire Boulevard, Suite 550
Los Angeles, CA

19Southern California Association Of Nonprofit Housing (Amicus curiae)
Represented by Kathleen O'Prey Truman
Truman & Elliott, LLP
626 Wilshire Boulevard, Suite 550
Los Angeles, CA

20Southern California Association Of Nonprofit Housing (Amicus curiae)
Represented by Todd Elliott
Truman & Elliott, LLP
626 Wilshire Boulevard, Suite 550
Los Angeles, CA

21Saposhnek, Trudy (Amicus curiae)
Represented by Sean B. Hecht
UCLA School of Law
405 Hilgard Avenue
Los Angeles, CA

22Saposhnek, Trudy (Amicus curiae)
Represented by David Pallack
SFV Neigborhood Legal Services
13327 Van Nuys Boulevard
Pacoima, CA

23Saposhnek, Trudy (Amicus curiae)
Represented by Joshua Todd Stehlik
SFV Neigborhood Legal Services
13327 Van Nuys Boulevard
Pacoima, CA

24People For Parks (Amicus curiae)
Represented by Sean B. Hecht
UCLA School of Law
405 Hilgard Avenue
Los Angeles, CA

25Sierra Club (Amicus curiae)
Represented by Sean B. Hecht
UCLA School of Law
405 Hilgard Avenue
Los Angeles, CA

26Natural Resources Defense Council (Amicus curiae)
Represented by Donald B. Mooney
Attorney at Law
129 "C" Street, Suite 2
Davis, CA

27Environmental Defense Center (Amicus curiae)
Represented by Rachel B. Hooper
Shute, Mihaly & Weinberger, LLP
396 Hayes Street.
San Francisco, CA

28Environmental Defense Center (Amicus curiae)
Represented by Michelle Wilde Anderson
Chambers of M. Hall Patel
450 Golden Gate Avenue, Box 36060
San Francisco, CA

29Environmental Defense Center (Amicus curiae)
Represented by Amy Jean Bricker
Shute, Mihaly & Weinberger, LLP
396 Hayes Street
San Francisco, CA

30California Preservation Foundation (Amicus curiae)
Represented by Rachel B. Hooper
Shute, Mihaly & Weinberger, LLP
396 Hayes Street
San Francisco, CA

31Brandt-Hawley Law Group (Opinion Modification Requestor)
Represented by Susan Brandt-Hawley
Brandt-Hawley Law Group
P.O. Box 1659
Glen Ellen, CA


Opinion Authors
OpinionJustice Kathryn M. Werdegar

Disposition
Oct 30 2008Opinion: Affirmed in part/reversed in part

Dockets
Mar 28 2007Petition for review filed
  Respondent City of West Hollywood Attorney Christi Hogin
Apr 2 20072nd petition for review filed
  Respondents Waset, Inc., West Hollywood Community Housing Corporation & Laurel Place West Hollywood, Inc. Attorney James L. Arnone
Apr 3 2007Received Court of Appeal record
 
Apr 13 2007Application filed to:
  file a combined answer to the petitions for review (by 4-17-07) Save Tara, petitioner
Apr 17 2007Answer to petition for review filed
  Appellant Save Tara Attorney Katherine Trisolini
Apr 26 2007Reply to answer to petition filed
  Respondent City of West Hollywood
Apr 27 2007Reply to answer to petition filed
  Respondents, WASET, Inc., West Hollywood Community Housing Corp., and Laurel Place West Hollywood, Inc.,
May 16 2007Letter sent to:
  all counsel enclosing a copy of the grant order and the form for certification of interested entities and persons.
May 16 2007Petition for review granted (civil case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
May 17 2007Received Court of Appeal record
  remainiing doghouses [2 & 3] shipped regular
May 17 20072nd record request
  for remaining volumes of the record.
May 24 2007Certification of interested entities or persons filed
  Respondent City of West Hollywood by Christi Hogin of Jenkins & Hogin, LLP, retained.
May 24 2007Certification of interested entities or persons filed
  Respondents WASET, Inc.,
Jun 6 2007Certification of interested entities or persons filed
  Jan Chatten-Brown and Katherine Trisolini Chatten-Brown & Carstens for appellant Save Tara
Jun 14 2007Opening brief on the merits filed
  Respondent City of West Hollywood Attorney Christi Hogin
Jun 15 2007Opening brief on the merits filed
  Respondents WASET Inc.,
Jun 25 2007Request for extension of time filed
  for a 30-day e.o.t. to fille appellant's consolidated and oversized answer briefs on the merits.
Jun 25 2007Application filed to:
  File appellant's combined oversized answer brief on the merits, not to exceed 28,000 words
Jun 27 2007Received:
 
Jun 27 2007Received:
 
Jun 28 2007Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file Appellant's Consolidated and Oversized Answer Brief on the Merits is extended to and including August 14, 2007. No further extensions of time are contemplated.
Aug 13 2007Change of contact information filed for:
  Jan Chaten-Brown, Chaten-Brown & Carstens at 2601 Ocean Park Blvd., Suite 205, Santa Monica, CA 90405-3219 phone number and fax remained the same. (Counsel for appellant)
Aug 15 2007Answer brief on the merits filed
  Save Tara, appellant Jan Chatten-Brown, Chatten-Brown & Carstens, retained CRC 8.25(b)
Sep 4 2007Reply brief filed (case not yet fully briefed)
  City of West Hollywood, Respondents
Sep 4 2007Reply brief filed (case fully briefed)
  WASET, Inc., West Hollywood Community Housing Corp., and Laurel Place West Hollywood, Inc., Real Parties in Interest & Respondents
Sep 4 2007Request for judicial notice filed (granted case)
  WASET, Inc., West Hollywood Community Housing Corp., & Laurel Place West Hollywood, Inc., Real Parties in Interest & Respondents (submitted concurrent w/ Brief on the Merits) [ 1st volume contains exhibits A & B; and volume two holds exhibit C]
Sep 17 2007Opposition filed
  Appellant's Opposition to Real Parties in Interest's Request for Judicial Notice by Jan Chatten-Brown, retained
Sep 17 2007Received:
  {proposed order} re: request for Judicial Notice submitted by Real Parties in Interest WASET, Inc., etc., per CRC 8.252 [to be considered with Judicial Request submitted 09-04-2007.]
Sep 20 2007Received application to file Amicus Curiae Brief
  The League of California Cities to file in support of Respondent City of West Hollywood Attorney David Aleshire [app/brief under same cover]
Sep 21 2007Received:
  Respondent WASET, INC.,'s reply in support of their Request for Judicial Notice.
Sep 26 2007Filed:
  Real Parties' Reply in Support of Request for Judicial Notice by Benjamin J. Hanelin and James L. Arnone, Latham & Watkins LP, counsel (Filed with permission)
Oct 1 2007Received application to file Amicus Curiae Brief
  Save Our Carmel River and The Open Monterey Project in support of Appellant Save Tara, by Michael W. Stamp, counsel
Oct 3 2007Received application to file Amicus Curiae Brief
  Planning and Conservation League, et al., in support of appellant by Michelle W. Anderson of Shute, Mihaly et al. and by Donald B. Mooney Law Offices
Oct 4 2007Received application to file Amicus Curiae Brief
  The Planning and Conservation League, et al. in support of appellant by Donald B. Mooney, Esq. and Michelle w. Anderson of Shute, Mihaly & Weingerger LLP
Oct 4 2007Received application to file Amicus Curiae Brief
  and proposed brief of Housing California and The Southern California Assoc., of Nonprofit Housing supporting respondent City of West Hollywood; also concurrently submitted is a Declaration of Todd Elliott in support of this application.
Oct 4 2007Received application to file Amicus Curiae Brief
  Lincoln Place Tenants Association, People for Parks and Sierra Club, in support of appellant by Sean B. Hecht of UCLA School of Law and by David Pallack Sstehlik of Neighborhood Legal Services of Los Angeles County
Oct 15 2007Permission to file amicus curiae brief granted
  The application of Planning and Conservation League, Environmental Defense Center, California Preservation foundation, and The Natural Resources Defense Council for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filingo f the brief.
Oct 15 2007Amicus curiae brief filed
  Planning and Conservation League, Environmental Defense Center, California Preservation Foundation, and The Natural Resources Defense Council in support of appellant.
Oct 15 2007Permission to file amicus curiae brief granted
  The application of Save Our Carmel River and The Open Monterey Project for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Oct 15 2007Amicus curiae brief filed
  Save Our Carmel River and The Open Monterey Project in support of appellant
Oct 15 2007Permission to file amicus curiae brief granted
  The application of Lincoln Place Tenants Association, People for Parks, Sierra Club, and Trudy Saposhenek for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Oct 15 2007Amicus curiae brief filed
  Lincoln Place Tenants Association, People for Parks, Sierra Club and Trudy Sapopshenek in support of appellant.
Oct 15 2007Permission to file amicus curiae brief granted
  The application of The League of California Cities for permission to file an amicus curiae brief in support of Respondent City of West Hollywood is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Oct 15 2007Amicus curiae brief filed
  The League of California Cities in support of Respondent City of West Hollywood.
Oct 15 2007Permission to file amicus curiae brief granted
  The application of Housing California and the Southern California Association of Nonprofit Housing for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Oct 15 2007Amicus curiae brief filed
  Housing California and the Southern California Association of Nonprofit Housing in support of respondent.
Nov 2 2007Response to amicus curiae brief filed
  Real parties interest WASET, Inc.,, West Hollywood Community Housing Corp., and, Laurel Place West Hollywood, Inc., [ combined answer to a.c. briefs in support of appellant Save Tara]
Nov 2 2007Response to amicus curiae brief filed
  City of West Hollywood, respondent by Christi Hogin, counsel
Nov 5 2007Response to amicus curiae brief filed
  Appellant Save Tara to Amicus Curiae Briefs of Housing California and Southern California Association of Nonprofit Housing and League of California Cities.
Nov 5 2007Response to amicus curiae brief filed
  RPIS WASET, Inc., West Hollywood Community Housing corp., and Laurel Place West Hollywood, Inc., [combined answer to amicus briefs in support of appellant Save Tara]
Nov 5 2007Note: Mail returned and re-sent
  David J. Aleshire at address appearing on the State Bar's website and noted herein.
Feb 4 2008Received:
  Letter dated 1-31-2008 from Jan Chatten-Brown, counsel for Appellant Save Tara, advising of current plans to be out of state during the first week of April, and requests to avoid scheduling oral argument on that date.
Jun 2 2008Received:
  Letter dated 5-29-2008 from Jan Chatten-Brown, counsel for Appellant Save Tara, requesting the Court to avoid scheduling oral argument the first two weeks of November, 2008. Counsel has a pre-paid trip to Africa.
Jun 18 2008Change of contact information filed for:
  Attorneys James Arnone and Benjamin Hanelin Counsel for Respondents WASET, Inc., West Hollywood Community Housing Corporation and Laurel Place West Hollywood, Inc.
Jul 30 2008Case ordered on calendar
  to be argued Tuesday, September 2, 2008, at 1:30 p.m., in San Francisco
Aug 5 2008Note: Mail returned and re-sent
  Attorney Jan Chatten-Brown at address appearing on the State Bar's website and noted herein.
Aug 5 2008Note: Mail returned and re-sent
  Attorney Katherine A. Trisolini at address appearing on the State Bar's website, and noted herein.
Aug 11 2008Received:
  Letter from Jan Chatten-Brown dated August 8, 2008.
Aug 13 2008Request for judicial notice denied
  The request for judicial notice filed September 4, 2007, by Real Parties in Interest WASET, Inc., West Hollywood Community Housing Corporation and Laurel Place West Hollywood, Inc., is denied on grounds of irrelevance. (See Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1141, fn. 6; Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1064.)
Aug 14 2008Filed:
  joint application of respondent ( City of West Hollywood) and real parties in interest ( Waset, Inc. et al. to divide oral argument time. City of West Hollywood 20 min- using 10 min. for opening, and 10 min. for rebuttal,; Housing Corp 10 min. by counsel, Christi Hogin and James L. Arnone. appearance sheet included
Aug 19 2008Filed:
  WASET, Inc., West Hollywood, Community Housing Corp., and Laurel Place West Hollywood, Inc. RPI/Respondents ~ supplemental Brief on the Merits.
Aug 20 2008Order filed
  The request of counsel for respondents in the above-referenced cause to allow two counsel to argue on behalf of respondents at oral argument is hereby granted. The request of respondents to allocate to the City of West Hollywood, 20 minutes, and Waset, Inc., et al., 10 minutes of respondents' 30-minute allotted time for oral argument is granted.
Aug 21 2008Received:
  Letter dated August 20, 2008 from Chatten-Brown & Carstens, counsel for appellant, citing additional authorities
Aug 21 2008Received:
  Appellant Save Tara's Notice of Lodging of Federal Authorities not contained in briefs and papers on file.
Aug 22 2008Received:
  Letter dated August 21, 2008 from Benjamin J. Hanelin, counsel for real parties Re: Objection to Improper Supplemental Brief by plaintiff/appellant
Sep 2 2008Cause argued and submitted
 
Oct 29 2008Notice of forthcoming opinion posted
 
Oct 30 2008Opinion filed: Affirmed in part, reversed in part
  and remanded to the Court of Appeal for further proceedings consistent with our opinion. Opinion by Werdegar, J -- joined by George, C.J., Kennard, Baxter, Chin, Moreno, and Corrigan, JJ.
Nov 14 2008Request for modification of opinion filed
  Save Tara, Appellant by Jan Chatten- Brown, counsel
Nov 14 2008Request for modification of opinion filed
  by Brandt-Hawley Law Group, (non-party) by Susan Brandt-Hawley, counsel
Nov 19 2008Filed:
  Response to Appellant's Request for Modification of Decision, RPI/Respondent Waset, Inc., West Holywood Community Housing Corp., and Laurel Place West Hollywood, Inc.
Nov 20 2008Order filed
  The finality of the opinion in the above-entitled case is hereby extended to and including December 29, 2008.
Nov 20 2008Filed:
  Response to Appellant's Request for Modification of Decision, Respondent City's by Michael Jenkins, Jenkins & Hogin LLP, counsel
Dec 2 2008Filed:
  Appellant Save Tara's Reply to Responses to Request for Modification of Decision and Exhibit in support thereof by Jan Chatten-Brown, counsel
Dec 4 2008Filed:
  *Joint* Response by Respondent, City of West Hollywood and RPI/Resp., Waset Inc., to Appellant's Modification Request / Attorneys Michael Jenkins ~ and ~ James Arnon, \
Dec 9 2008Filed:
  Modification Requester's Reply to Responses to Request for Modification by Susan Brandt-Hawley, Brandt-Hawley Law Group.
Dec 10 2008Opinion modified - no change in judgment
 
Dec 10 2008Order filed
  The requests for modification of the opinion are denied. The opinion is modified on the court's own motion.
Dec 29 2008Remittitur issued (civil case)
 
Jan 12 2009Received:
  Acknowledgment of receipt for remittitur, signed for by Emma J. Ames, Deputy Clerk, CA2/8
Mar 11 2009Returned record
  5 doghouses (via OnTrac - addressed to Tommie Wright)
Mar 12 2009Received:
 
Jul 7 2009Received:
  3 doghouses (vol. 1, 2, & 3 of 5)

Briefs
Jun 14 2007Opening brief on the merits filed
 
Jun 15 2007Opening brief on the merits filed
 
Aug 15 2007Answer brief on the merits filed
 
Sep 4 2007Reply brief filed (case not yet fully briefed)
 
Sep 4 2007Reply brief filed (case fully briefed)
 
Oct 15 2007Amicus curiae brief filed
 
Oct 15 2007Amicus curiae brief filed
 
Oct 15 2007Amicus curiae brief filed
 
Oct 15 2007Amicus curiae brief filed
 
Oct 15 2007Amicus curiae brief filed
 
Nov 2 2007Response to amicus curiae brief filed
 
Nov 2 2007Response to amicus curiae brief filed
 
Nov 5 2007Response to amicus curiae brief filed
 
Nov 5 2007Response to amicus curiae brief filed
 
Brief Downloads
application/pdf icon
League of California Cities Amicus.pdf (74682 bytes) - League of California Cities Amicus Brief
application/pdf icon
Amicus brief of the Planning and Conservation League, Environmental Defense Center, California Preservation Foundation, and Natural Resources Defense Council in support of Save Tara.pdf (3915171 bytes) - Planning and Conservation League, Environmental Defense Center, California Preservation Foundation, and NRDC Amicus Brief
application/pdf icon
West Hollywood Petition for Review.pdf (9127575 bytes) - City's Petition for Review
application/pdf icon
City's Opening Brief on the Merits.pdf (6409838 bytes) - City's Opening Brief on the Merits
application/pdf icon
City's Reply Brief.pdf (3129058 bytes) - City's Reply Brief
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 16, 2011
Annotated by shelton abramson

Facts

The plaintiff is Save Tara, an organization of West Hollywood residents who oppose the development of a low-income senior housing complex on a historic property (“the Tara property”). After the previous owner donated the Tara property to the City of West Hollywood (“the City”), the city council supported a nonprofit developer’s (“Laurel Place”) efforts to build a senior housing complex on the property.

Save Tara claims that the City violated the California Environmental Quality Act (CEQA) because the city council “approved” the Laurel Place project before preparing an environmental impact report (EIR). Under CEQA, an agency must prepare an EIR before it “approves” a project, but it was previously unclear which agency actions constitute an “approval” that must be preceded by an EIR. See Pub. Resources Code, § 21000, Pub. Resources Code, § 21151(a); Cal. Code Regs. tit. 14, § 15000 et seq

The city council approved a “Conditional Agreement for Conveyance and Development of Property” on May 3, 2004. Save Tara claims that this Agreement represented the City’s “approval” of the Laurel Place project, and that the City was thereby required to complete an EIR prior to entering into the Agreement. The Agreement (1) conveys the Tara property to Laurel Place for the express purpose of developing affordable senior housing on the property, and (2) issues a loan to Laurel Place for preliminary expenses. The conveyance and part of the loan are conditional on Laurel Place’s compliance with CEQA “as reasonably determined by the City Manager,” but the City Manager can waive this condition. The City also loaned $475,000 to Laurel Place with no strings attached.

At the time of the Conditional Agreement, the City had not finalized specific plans for the site, but it had considered and rejected several proposed alternatives.

City officials had also expressed support for the Laurel Place project prior to the May Agreement:

  • In June 2003, the city council gave Laurel Place an option to purchase the property
  • The City supported Laurel Place’s June 2003 application for federal funding to the U.S. Department of Health and Human Services (HUD). In the application, the City said that it would commit $2.5 million to the project.
  • After HUD approved Laurel Place’s application for a $4.2 million grant, City’s mayor announced that the Tara property would be used for affordable senior housing in an email to City residents.
  • The City housing manager contacted current Tara tenants about providing relocation assistance.
  • The City housing manager made statements to residents suggesting that the City was obligated to proceed with plans to develop the Tara property as a low-income senior housing complex.

After Save Tara filed its complaint on July 12, 2004, the City and Laurel Place entered into a revised agreement on August 9, 2004. The August Agreement was similar to the May Agreement except that: (1) Under the August Agreement, the city manager could no longer waive requirements that Laurel Place comply with CEQA, and (2) The August Agreement expressly granted the City “complete discretion over…any actions necessary to comply with CEQA” while emphasizing that the new agreement “imposes no duty on City to approve…any documents prepared pursuant to CEQA.”

Procedural History

Save Tara filed a complaint and a petition for a writ of mandate alleging that the May Agreement violated CEQA because the City approved the Laurel Place project without preparing an EIR.

The Superior Court denied Save Tara’s petition because the May Agreement was contingent on Laurel Place’s compliance with CEQA. The conditional nature of the conveyance and the loan meant that the City had “not given its final approval to convey the property at issue to Laurel Place” or “given its final approval of the housing project itself.” Because the May Agreement did not “approve” the project, the City was not required to prepare an EIR before entering into the Agreement.

The Court of Appeal reversed, holding that agencies must prepare an EIR when “there is enough information about the project to permit a meaningful environmental assessment.” Because the City’s plans were sufficiently well defined before the May Agreement, the City violated CEQA by approving the Conditional Agreement without preparing an EIR. The Court of Appeal remanded the case to the Superior Court, with orders that the City void the May and August Agreements.

City and Laurel Place appealed the Court of Appeal’s judgment. The Supreme Court of California granted their petition for review.

Issues

Is the appeal moot because the City prepared an EIR after the complaint was filed but before the Supreme Court heard this appeal?

Was the May or August Agreement an “approval” of a project under CEQA that required the City to prepare an EIR before entering into the Agreement?

Holdings

Justice Werdegar announced the court’s decision in a unanimous opinion.

The appeal is not moot because the Court can still grant the plaintiff’s requested relief by voiding the May and August Agreements. Invalidating the Agreements would require the City to reconsider its approval of the project in light of an EIR assessment.

The City was required to prepare an EIR before the city council entered into the May and August Agreements. An agency agreement that is contingent on CEQA compliance will constitute agency “approval” of a project if the surrounding circumstances suggest that the agency is effectively committed to that project. The May and August Agreements and the surrounding circumstances suggest that those Agreements represented the City’s approval of the Laurel Place project. As a result, the City was required to prepare an EIR before entering into those Agreements.

The City’s May and August Agreements are void and must be reconsidered in light of a valid EIR.

The City is not necessarily required to prepare a new EIR. The City should decide whether changed circumstances merit a new EIR and the superior court should review this decision under a substantial evidence standard.

Analysis

Mootness

The City’s preparation of a valid EIR during the course of this appeal does not render the appeal moot. Invalidating the May and August Agreements would provide a suitable remedy for the alleged injury—the City’s approval of the Laurel Place project before it had prepared an EIR. Setting aside these Agreements would require the City to reconsider its approval of the project in light of a valid EIR.

Timing Issues

Under Section 21000 of CEQA, lead agencies must prepare an EIR for “any project which they propose to carry out or approve.” Pub. Resources Code, § 21000. Section 21151 states that “local agencies shall prepare” an EIR for any project that they “intend to carry out or approve which may have a significant effect on the environment.” Pub. Resources Code, § 21151(a).

An agency must prepare an EIR before a project is approved. Whether an agency has “approved” a project is a legal question. CEQA’s implementing regulations (“CEQA Guidelines”) define “approval” as a “decision by a public agency which commits the agency to a definite course of action in regard to a project.” Cal. Code Regs. tit. 14, § 15352(a). When a public agency contracts with a private entity, “approval occurs upon the earliest commitment to issue or the issuance by the public agency of a discretionary contract, grant, subsidy, loan, or other form of financial assistance.” Cal. Code Regs. tit. 14, § 15352(b).

Because CEQA requires an EIR before project approval, the “approval” date is effectively a deadline for preparing an EIR. An EIR must be completed early enough to guide decisionmaking, but not so early that the project is too poorly defined for the report to be meaningful. No Oil, Inc. v. City of Los Angeles, 13 Cal. 3d 68 (1974); Fullerton Joint Union High School Dist. v. State Bd. of Education,, 32 Cal. 3d 779 (1982). Agencies must prepare an EIR before a project is approved because the EIR is supposed to be a factor in agency decisionmaking and not merely a post hoc rationalization. Laurel Heights Improvement Assn. v. Regents of University of California, 47 Cal. 3d 376 (1988).

While the City has some discretion in defining when a project is approved, giving the City too much discretion would allow it to circumvent its obligations under CEQA.

The Contingent Nature of the Agreements

The City argues that the May and August Agreements are not “approvals” under the CEQA Guidelines because the conveyance and loan were contingent on CEQA compliance. See Stand Tall on Principles v. Shasta Union High Sch. Dist., 235 Cal. App. 3d 772 (1991); Concerned McCloud Citizens v. McCloud Community Services Dist., 147 Cal. App. 4th 181 (2007). However, Stand Tall and McCloud are distinguishable on their particular facts. In McCloud, the agency was not required to prepare an EIR before entering into a conditional agreement because there was not enough information about the final project for an EIR to be meaningful. In Stand Tall, an agency was permitted to select a school site contingent on CEQA compliance before preparing an EIR because the agency needed to purchase the land and it is not always feasible to comply with CEQA’s requirements before purchasing land in a competitive real estate market.

Projects may be “approved” before the execution of unconditional, irrevocable agreements. The Guidelines define “approval” as the “earliest commitment” to a project, not a final commitment. Cal. Code Regs. tit. 14, § 15352(b). “Approval” may occur before an agency finalizes details. An agency may have practically committed itself to a “definite course of action” through a conditional agreement, public statements, or financial support. See Cal. Code Regs. tit. 14, § 15352(a). Whether an event constitutes agency “approval” that must be preceded by an EIR is a practical inquiry that does not depend on formal labels like “final” or “contingent” agreement. A court must locate “approval” sufficiently early in the life of a project so that an EIR can meaningfully inform decisionmaking. Natural Resources Defense Council, Inc. v. City of Los Angeles, 103 Cal. App. 4th 268, 271 (2002). Requiring an EIR before project approval also reassures citizens that the government has analyzed the environmental impact of a project before proceeding.

Save Tara argues that an agreement constitutes an “approval” that must be preceded by an EIR if the agency has enough information to conduct an environmental assessment. However, the CEQA Guidelines’ define approval as a decision that “commits an agency to a definite course of action.” See Cal. Code Regs. tit. 14, § 15352(a). Save Tara’s rule would require agencies to prepare EIRs before even the most preliminary agreements, substantially burdening public-private partnerships. Save Tara relies on Citizens for Responsible Government v. City of Albany to stand for the proposition that an EIR must be completed as soon as there is “meaningful information for environmental assessment.” 56 Cal. App. 4th 1199 (1997). However, Citizens for Responsible Government is distinguishable because even though the agency had not executed a final agreement, it had foreclosed certain alternatives by placing the proposal on the ballot.

Whether a conditional agreement constitutes project “approval” is a fact specific inquiry that requires the Court to consider whether the agency is effectively committed to any aspects of the project in a manner that would interfere with the consideration of alternatives. Courts should consider whether the agency has “limited its discretion with respect” to CEQA review and “committed significant resources to shaping the project” such that the agency’s actions effectively foreclose any meaningful option. Prior to CEQA review, an agency must not promote a project “in a manner that forecloses alternatives or mitigation measures that would ordinarily be part of CEQA review of that public project.” Cal. Code Regs. tit. 14, § 15000(b)(2)(B). However, an agency will not be required to complete an EIR if it lacks the necessary information. See Cal. Code Regs. tit. 14, § 15004(b). If an agency is required to complete a report for a large-scale project at an early stage, it may compose a more general summary.

Application

The May and August Agreements and the surrounding circumstances suggest that the City made a definite commitment constituting approval of the project before preparing an EIR report.

The City “approved” the Laurel Place project through the May and August Agreements. Both Agreements express strong support for the project and execute a $475,000 loan independent of any subsequent CEQA compliance. Because this is a substantial outlay that the City could not recover regardless of CEQA compliance, it might unduly influence subsequent analyses of an EIR.

The text of the Agreements also limited the City’s options. The city manager’s findings about the project’s CEQA compliance were subject to a reasonableness standard and it was unclear whether the City could decline to provide further funding for environmental reasons if an EIR assessment revealed that the project would have an adverse impact.

The May Agreement did not contain a procedure for appealing the city manager’s decision to waive CEQA compliance to the city council. The failure to include such a provision was an impermissible attempt to circumvent CEQA review. See Sundstrom v. County of Mendocino, 202 Cal. App. 3d 296, 307 (1988).

Even though the August Agreement rescinded the city manager’s authority to waive CEQA requirements, the text of the May Agreement and the surrounding circumstances suggested that the city council would not adequately consider the findings of an EIR. These other circumstances include: (1) The City’s support of Laurel Place’s HUD application and City’s statement in that application that it would be contributing $2.5 million to the project, (2) Public statements committing the HUD grant money to Laurel Place’s senior housing project and suggesting that the City could not consider other uses for the land, and (3) The May Agreement’s requirement that Laurel Place begin relocating existing tenants before a final agreement and the August Agreement’s 30-day deadline for beginning relocation. Because relocation is largely irreversible, the Agreement to proceed with relocation prior to completing an EIR suggests that the City had already approved the Laurel Place project before preparing the EIR.

Tags

California Environmental Quality Act
CEQA
environmental impact report
EIR
approval
project approval
conditional agreement
conditional
contingent
timing
mootness
moot
environment
environmental

Related Authority

Pub. Resources Code, § 21000
Pub. Resources Code, § 21151(a)
Cal. Code Regs. tit. 14, § 15000 et seq
Cal. Code Regs. tit. 14, § 15004(b)
Cal. Code Regs. tit. 14, § 15352
No Oil, Inc. v. City of Los Angeles, 13 Cal. 3d 68 (1974)
Fullerton Joint Union High School Dist. v. State Bd. of Education, 32 Cal. 3d 779 (1982)
Laurel Heights Improvement Assn. v. Regents of University of California, 47 Cal. 3d 376 (1988)
Stand Tall on Principles v. Shasta Union High Sch. Dist., 235 Cal. App. 3d 772 (1991)
Concerned McCloud Citizens v. McCloud Community Services Dist., 147 Cal. App. 4th 181 (2007)
Natural Resources Defense Council, Inc. v. City of Los Angeles, 103 Cal. App. 4th 268, 271 (2002)
Citizens for Responsible Government v. City of Albany, 56 Cal. App. 4th 1199 (1997)
Sundstrom v. County of Mendocino, 202 Cal. App. 3d 296, 307 (1988)

by Shel Abramson

May 30, 2011
Annotated by aaron kleven

FACTS

The property at 1343 North Laurel Avenue (1343 Laurel) in the City of
West Hollywood (City) is occupied by a large colonial-revival-style house, complete with a chauffer’s house and garage, constructed in 1923. The City designated the main house a local cultural resource. The house’s owner, Mrs. Elsie Weisman donated the property, known colloquially as “Tara,” to the City at the time of her death, on the condition that other tenants on the property be allowed to remain there for six months afterwards.

Following Mrs. Weisman’s death in 2000, two nonprofit community housing developers, West Hollywood Community Housing Corporation and WASET, Inc., along with Laurel Place West Hollywood, Inc. (a corporation they created for the purpose), proposed to develop approximately 35 housing units for low-income seniors on the site. The project would preserve the main house but not the chauffeur’s house or garage. Part of the land would also be used as a public park.

In 2003 the developers submitted a grant application to the United States Department of Housing and Urban Development (HUD). In June of that year the City granted Laurel Place an option to purchase the property, and in a letter to a HUD official, outlined a plan to contribute $2.5 million in land and funds to the project. In late 2003, HUD awarded a $4.2 million grant to the project, and the City’s mayor announced the grant to residents.

The remaining tenants objected to the project, but the City responded in part that owing to the HUD grant, the project was an obligation that it must pursue.

Save Tara, an organization of city residents and neighbors opposed to the project, wrote City to urge that it conduct review under the California Environmental Quality Act (CEQA), including an environmental impact report (EIR), before approving any new agreement, making a loan, or renewing the purchase option.

In May of 2004, the City voted to approve a conditional agreement with Laurel Place, providing for the conveyance of the property and a $1 million loan subject to certain conditions precedent, among them, that all “applicable requirements of CEQA” be satisfied. Part of the loan was to be used for, among other things, “environmental reports” and “governmental permits and fees” and was not subject to CEQA compliance.

In July of 2004, Save Tara filed a complaint and petition for
writ of mandate alleging, inter alia, that City had violated CEQA by failing to prepare an EIR before approving the loan and draft agreement.

The City then revised its agreement with Laurel Place in August, removing that autonomy of the city manager to waive CEQA requirements that existed under the original agreement.

The Superior Court denied Save Tara’s petition, finding that while an EIR was called for, it was not required that it take place before the May 2004 agreement, because the agreement was “expressly conditioned on compliance with CEQA” and because the City had not given its final approval of the project.

The Court of Appeal reversed, finding that §21100 of CEQA requires preparation of an EIR whenever agencies propose to approve a project with significant potential environmental impact. The Court reasoned, that merely conditioning the agreement on CEQA compliance, is not sufficient, because the EIR is intended as part of the decision whether to advance the project, not an after-the-fact assessment of the environmental impact, once the project has already been set in motion. The Court stated that an EIR should be initiated as soon as there is sufficient information about the project top permit a meaningful assessment. It held that sufficient information existed on the Laurel Pace project prior to the May 2004 agreement.

Laurel Place appealed to the Supreme Court of California

PROCEDURAL HISTORY

On July 12, 2004, Save Tara filed the operative complaint and petition for writ of mandate alleging, inter alia, that City had violated CEQA by failing to prepare an EIR before the city council’s May 2004 approval of the loan and draft agreement.

The Superior Court denied Save Tara’s petition, finding that while an EIR was called for, it was not required that it take place before the May agreement, because the agreement was “expressly conditioned on compliance with CEQA” and because the City had not given its final approval of the project.

The Court of Appeal reversed, finding that §21100 of CEQA requires preparation of an EIR whenever agencies propose to approve a project with significant potential environmental impact. The Court reasoned, that merely conditioning the agreement on CEQA compliance, is not sufficient, because the EIR is intended as part of the decision whether to advance the project, not an after-the-fact assessment of the environmental impact, after the project has already been set in motion.

Laurel Place appealed and the Supreme Court of California granted review.

ISSUES

Under the California Environmental Quality Act (CEQA), a public agency must prepare and environmental impact report (EIR) prior to approval of any project that might have significant environmental impact. Can a public agency’s agreement to allow a private real estate development, conditioned on future compliance with CEQA, constitute “approval” of the project within the meaning of sections 21100 and 21151 of CEQA? If so, under what circumstances?

Is the issue moot, because the City completed an EIR during the pendency of the appeal?

HOLDINGS

The issue is not moot, because the court can still award the relief sought by Save Tara: The voidance of the City’s existing agreements with Laurel Place calling for reconsideration of the project in light of the EIR.

Under some circumstances a public agency’s agreement to sell land for private real estate development constitutes “approval” under CEQA, and must be preceded by preparation of an EIR.

Under CEQA an EIR should generally be completed before a public agency has effectively committed itself to the completion of a project, when viewed in light of the surrounding circumstances.

The City had effectively committed itself to the project, despite the conditional nature of the agreement, where prior to the EIR the City: a) Drafted agreements that affirmatively stated an intention to complete the project; b) Agreed to lend money to the project, commencing before the EIR, which the project could not pay back unless it was completed; c) Commenced the process of relocating tenants of the property, a potentially irreversible phase of the project; d) Publicly expressed an intention to complete the project; e) Initially drafted an agreement ceding all authority on CEQA to the City Manager, with no option for appeal.

ANALYSIS

Mootness

During pendency of the appeal, the City completed an EIR. City claimed that because the EIR had already been completed, no further relief could be awarded. Save Tara argued that effective relief would be a court order to set aside the agreements. The Court agreed with Save Tara, concurring with the group’s reliance on Bakersfield Citizens for Local
Control and Woodward Park Homeowners Association, 124 Cal.App.4th 1184 (2004) (holding that partial construction of a project did not moot the appeal, as the project could still be modified, reduced, or mitigated). (linked below) Noting that no irreversible change had occurred on the project, the court reasoned that Save Tara could still be awarded the relief it sought: voidance of the approvals, necessitating reconsideration of those decisions in light of the EIR.

Timing
To address the required timing of the EIR completion, the Court pointed to Sections 21100 and 21151 of CEQA, (linked below) which say that agencies must carry out EIR on projects they “propose to carry out or approve.” These sections don’t explicitly say when the EIR must be completed, but §15352 of CEQA guidelines says: (a) Approval means decision which commits the agency to a definite course of action; (b) With private projects “approval” occurs on commitment to issue discretionary contract, grant, subsidy or loan etc. Relying on Section 15004, as well as No Oil, Inc. v. City of Los Angeles, 13 Cal.3d 68 (1974), (linked below) the Court reasoned that EIR’s should be prepared as early as feasible, yet late enough to provide meaningful information. The agency may not define “approval” so as to make its commitment to a project precede the EIR.

Agreements contingent on CEQA compliance.

The court then addressed the general validity of CEQA compliance conditions in agreements. It reasoned that a CEQA compliance condition does not automatically make for an invalid agreement. But if as a practical matter, the agreement effectively commits the public agency to the project, it will be considered an “approval,” and regardless of the CEQA compliance condition, will require prior environmental review.

The court reiterated that “approval” occurs on the earliest commitment to issue or issuance of discretionary contract, grant, subsidy, loan,
or other form of financial assistance, etc.

Responding to the arguments of the Appellant, the Court distinguished Concerned McCloud Citizens v. McCloud Community Services Dist.,
147 Cal.App.4th 181 (2007), which it said relied in part on a lack of information in the agreement in question, making an EIR impossible.

The Court also distinguished Stand Tall on Principles v. Shasta Union High Sch. Dist., 235 Cal. App. 3d 772 (1991), (linked below) as falling within an exception for land acquisitions.

The Court rejected Laurel Place’s interpretation of “commitment,” stating that the Appellants apparently would limit “commitment” for CEQA purposes, to unconditional agreements whereby the agency agrees to be legally bound to take a course of action. But the Court reasoned that this interpretation allows a project to develop too far before completing an EIR, so that the agency would be limited in its ability to respond to the findings. Court goes on to note that the code says approval is the “earliest commitment,” and defines approval as the first exercise of discretion to execute a contract, grant financial assistance etc.

However the Court also noted that their findings do not extend to considering every agreement, conditional or unconditional, an “approval.” Agencies may provide preliminary assistance that does not rise to the level of “commitment.” Approval cannot refer to an agency’s mere interest in or inclination to support a project.

Before conducting CEQA review, agencies must not advance a project in a manner that would make it impossible to respond to CEQA requirements. In applying this principle to conditional development agreements, courts should look not only to the terms of the agreement but to the surrounding circumstances to determine whether, as a practical matter, the agency has committed itself to the project so as to effectively preclude it from responding to the findings of the EIR

Application to City Decisions

The Court addressed how its conclusions on timing and validity applied to the May and August agreements. It found that, viewed in light of the surrounding circumstances, the agreements amounted to “approval” of the plan. The court highlighted a number of facts in support of this conclusion. First, the agreements state affirmative intention to carry out the projects. The City agreed to lend money, some of which was to be advanced before EIR approval, and was to be repaid by project receipts. Therefore if city did not give final approval it would not be repaid. The May 3 version of the agreement had no provision for appealing the city manager’s decision on CEQA. This, the Court reasoned, in itself was an impermissible attempt to approve the project without CEQA compliance. Even thought City later remedied this, by approving the August draft, the City had tipped its hand that it was willing to give up its authority regarding CEQA compliance. The City expressed publicly, and in communications with tenants, that it was committed to going through with the project. The City proceeded with tenant relocation, a potentially irreversible step in the project, before the EIR had occurred. These actions, the Court reasoned, strongly indicated that the City’s commitment to the project would not be contingent on the findings of an EIR.

Conclusion

Case remanded to the Superior Court with orders to: 1) Order that the City void the May and August agreements; 2) Review the City’s decision under the substantial evidence standard if it decides no new EIR is necessary; and 3) Make any other order necessary under § 21168.9.

TAGS

California Environmental Quality Act
CEQA
Environmental Impact Report
EIR
Pub. Resources Code, § 21100
Pub. Resources Code, § 21151
Save Tara
Real Estate
Public Agency
Development
1343 North Laurel Ave.
United States Department of Housing and Urban Development (HUD)

STATUTES

California Environmental Quality Act, (CEQA) Pub. Resources Code, § 21000 et seq.
Pub. Resources Code, § 21100, subd. (a)
Pub. Resources Code, § 21151, subd, (a)

CASES

Bakersfield Citizens for Local Control v. City of Bakersfield, 124 Cal.App.4th 1184 (2004) (partial construction of a project did not moot the appeal, as the project could still be modified, reduced, or mitigated).

Woodward Park Homeowners Assn. v. Garreks, Inc., 77 Cal.App.4th 880 (2000) (already constructed project could be modified or removed).

No Oil, Inc. v. City of Los Angeles, 13 Cal.3d 68 (1974)

Laurel Heights Improvement Assn. v. Regents of University of California, 47 Cal.3d 376 (1988)

Concerned McCloud Citizens v. McCloud Community Services Dist., 147 Cal.App.4th 181 (2007)

Stand Tall on Principles v. Shasta Union High Sch. Dist., 235 Cal. App. 3d 772 (1991)

Jan 5, 2009
Annotated by diana teasland

Written by Jared Thompson

Summary of the Opinion

Plaintiff Save Tara challenged the City of West Hollywood’s agreements with developers to redevelop a historic mansion into affordable housing for senior citizens. The challenge alleged that the agreements violated the California Environmental Quality Act (CEQA) because they constituted a project “approval” for CEQA purposes and were executed prior to the environmental impact review required by CEQA. The California Supreme Court took the case to decide “whether and under what circumstances an agency’s agreement allowing private development, conditioned on future compliance with CEQA, constitutes approval of the project within the meaning of [CEQA].”

As a preliminary matter, the Court found that the City’s belated preparation of an Environmental Impact Report (EIR) after the challenged agreements did not moot Save Tara’s claims because the relief requested—setting aside the approvals for the project—could still be granted. Addressing the substantive claims, the Court emphasized that, for the purposes of CEQA, the environmental review of a project must occur “neither so early that the burden of environmental review impedes the exploration and formulation of potentially meritorious projects, nor so late that such review loses its power to influence key public decisions about those projects.” The court concluded that
A CEQA compliance condition can be a legitimate ingredient in a preliminary public-private agreement for exploration of a proposed project, but if the agreement, viewed in light of all the surrounding circumstances, commits the public agency as a practical matter to the project, the simple insertion of a CEQA compliance condition will not save the agreement from being considered an approval requiring prior environmental review.
The Court declined to specify a bright-line rule for determining when an “approval” occurs for CEQA purposes, adopting instead “the general principle that before conducting CEQA review, agencies must not ‘take any action’ that significantly furthers a project ‘in a manner that forecloses alternatives or mitigation measures that would ordinarily be part of CEQA review of that public project.’”

Applying these principles to the facts of the case, the Court concluded that the City’s agreements constituted a commitment to the project and therefore were executed in violation of CEQA. The case was remanded with instructions that the City be ordered to set aside its approval of the project, and that the City, subject to district court review, decide whether a new or supplemented EIR was necessary before reconsidering the project approval.

The Court modified its October 30, 2008, opinion with an order on December 10, 2008, that removed one sentence from the opinion but did not change the holding or the outcome of the case.

2. Significance of the Opinion

Save Tara is significant because it gives guidance to governmental entities that need to determine when CEQA reviews must occur. Although it is relevant to all decisions that are subject to CEQA, the Save Tara opinion is particularly relevant when governmental entities are considering entering into public-private development partnerships or when governmental entities seek to explore a project while deferring CEQA review. Unfortunately, the lack of a bright-line test to differentiate project exploration from project commitment is likely to spur additional litigation any time there is some question over whether a governmental entity has “committed” to a project or “approved” it. Nonetheless, Save Tara provides a basic metric for both governmental entities and groups that seek to challenge development decisions to assess when CEQA review is required. Save Tara will likely become a frequently cited case in future CEQA challenges that allege that a project was approved in violation of the procedures laid out in CEQA.