Scope of CEQA Review Constrained by Prior Judgments

Tiburon Open Space Committee v. County of Marin

(2022) 78 Cal.App.5th 700

In a contentious development case, the first appellate district recently held that a lead agency properly limited the scope of its CEQA review to recognize prior judgments which bound the lead agency to approve the project in a specific form.

The case involved a decades-long effort to develop 110 acres overlooking Tiburon and the San Francisco Bay. In 2017, the County certified an EIR and approved plans to construct 43 single-family residences. Previously, however, litigation involving prior development proposals had resulted in two stipulated judgments, in 1976 and 2007, which affected the scope of the EIR’s analysis.

First, in 1976, the developer sued the county, alleging a regulatory taking, after the county rezoned the property to prohibit more than 34 homes. The lawsuit resulted in a stipulated judgment that allowed the developer to build at least 43 homes. But in 2007, the county refused to process a development application, which conformed to the 1976 judgment, on the ground that the 1976 judgment was invalid. The developer sued again, and the resulting stipulated judgment “required [the county] to approve forty-three (43) homesites.” The 2017 EIR recognized the prior judgments and was tailored to omit analysis of certain alternatives.

In the ensuing lawsuit, residents and others argued that the county’s duty to conduct a complete CEQA review cannot be limited by the prior judgments. The trial and appellate courts rejected this argument. As explained by the appellate court, CEQA expressly recognizes that an agency’s discretion may be limited by its own obligations, and an EIR may only consider legally feasible alternatives. As such, it was proper for the EIR to have recognized the limitations on the county’s authority imposed by the prior judgments. Given the doctrines of res judicata and collateral estoppel, “the judgments clearly did exist and did have consequence.”

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Sean Hungerford is a Partner at Harrison, Temblador, Hungerford & Guernsey LLP in Sacramento, California.

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