Appeal sets new rule of law for CEQA, Timberland Act

High Sierra Rural Alliance v. County of Plumas has established a new rule of law. During its regular Dec. 6 meeting members of the Plumas County Planning Commission rejoiced over that recent message.

A decision was handed down Oct. 19 that Plumas County’s General Plan does not violate the California Timberland Productivity Act of 1982, according to the Third Appellate District in High Sierra Rural Alliance v. County of Plumas.

That ruling was announced locally in November, but in looking at the certified for publication document Commissioner Larry Williams pointed out to other commissioners, “It establishes a new rule of law in California.”

“That’s one way to get Plumas County on the map,” agreed chair of the Plumas County Planning Commission Robert Abbott.

“It does put Plumas County on the map,” said Plumas County Planning Commissioner Randy Wilson. He encouraged all commissioners to read the appellate district’s findings. “Get a good idea of what it means.”

He added that interpretations of the ruling are already being made by other jurisdictions.

The opinion

The opinion of the Third Appellate District makes an important contribution to jurisprudence under the California Environmental Quality Act and the California Timberland Productivity Act, according to Plumas County’s attorney James G. Moose of the firm Remy, Moose and Manley.

The opinion established a new rule of law in that it explains “the finding (required by the Timberland Act) that a residence or structure is necessary for the management of a timberland production zoned parcel is not an exercise of discretion as used in the CEQA context.”

Using the Friends of Westwood, Inc. v. City of Los Angeles as a basis, the opinion provides local agencies and legal practitioners important guidance. Under that case, it was determined that an agency can exercise CEQA discretion only where it has the power to stop or modify a project in a way that would mitigate the environmental damage in any significant way, according to Justices Coleman A. Blease, Andrea L. Hoch and William J. Murray.

Further, it was the court’s opinion that the Timberland Act “affords the county no discretion to stop or request modification of the proposed residence or structure in order to mitigate environmental impacts,” and that’s why the court rejected High Sierra’s argument.

The appellate court reasoned that “By determining that the county could make a factual finding regarding the necessity of a proposed residence on a 160-acre (or larger) parcel zoned TPZ (Timberland Production Zone) without triggering the need for CEQA review, the court has made a very useful and helpful distinction between the judgment agencies must sometimes use in ascertaining facts, on the one hand, and the discretion agencies may enjoy under their ordinances or regulations to deny projects or condition them in order to avoid or ameliorate their environmental impacts, on the other hand.”

“Judgment used to ascertain facts is not the same as discretion created by ordinances or regulations authorizing project denial or conditioning based on environmental factors,” according to the opinion. “The opinion makes this distinction in a way that no prior CEQA precedence has done.”

In sharing the opinion with commissioners Wilson said that the opinion is something to be proud of. He said that he shared it with all planning directors in the state.

High Sierra’s challenge

HRSA challenged the county’s General Plan update and final EIR especially “these documents’ treatment of possible growth outside of the county’s planning area,” according to the document.

HSRA contended that 1) that the plan update violated the timberland act of 1982; 2) that the plan’s update of a residence or structure on a TPZ is compatible with its designated use “even in the absence of a requirement the residence or structure be ‘necessary to the management of land zoned as timberland production’” and that this violated Government Code section 51104.

HSRA also contended 3) that Plumas County violated CEQA by failing to properly address potential impacts of construction of multiple buildings covering up to two acres on a single parcel without discretionary review or mitigation policies to protect the environment.

In 4) Plumas County’s EIR is defective because it doesn’t address significant impact of allowing new clustered subdivision development in rural areas; and 5) that Plumas should be required to re-circulate the final EIR because of significant information regarding any development after the close of the public comment period.

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