Tresch v. County Of Sonoma

California Court of Appeals, 1st District, Division 4, No. A133472, January 4, 2013: California county’s resolution clarifying conservation easement not subject to environmental impact review. (Unpublished)

In connection with a proposed quarry operation on adjacent land, a conservation district adopted a resolution interpreting an existing conservation easement to permit the establishment of a wildlife preserve on agricultural land. The easement prohibits “any nonagricultural commercial or industrial activity or use” on the restricted land. The preserve was proposed as one possible mitigation of the impact the commercial quarry project would have on certain protected species. The quarry’s proponent’s attorney asked that the easement be clarified or amended to allow the preserve. The District’s staff and general manager concluded that the preserve should not be allowed without an amendment to the easement. The District board adopted an interpretive Resolution rather than an amendment.

Opponents of the quarry (appellants in this case) then brought suit claiming for a variety of reasons that the District’s adoption of the Resolution constituted “approval of a project” within the meaning of the California Environmental Quality Act (CEQA) (Pub. Resources Code, §§ 21000 et seq.) and therefore required compliance with CEQA. They also sought to “enjoin the District from interpreting conservation easements similar to the one at issue in this case in such a way as to permit similar mitigation in order to benefit other development projects, without first complying with CEQA.”

The Court explained CEQA this way: “CEQA generally prohibits governmental agencies from approving projects that have significant impacts on the environment without first completing the environmental review process, and either mitigating those impacts or finding mitigation to be infeasible and the impacts to be justified by overriding considerations. (§§ 21002, 21002.1, 21006, 21081.) CEQA defines a ‘project’ as ‘an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment,’ and which is undertaken, financially supported, or permitted by a public agency. (§ 21065.)”

In an unpublished opinion (not citable as precedent unless published) the Court refused to require CEQA review because it did not find that the Resolution was in any way a “project” within the applicable definition. The Court concluded that “All it [the Resolution] does is confirm that the terms of the Easement do not preclude the possibility that the Preserve, in some form, could be established on the Wilson property. … [W]hile the Resolution clarifies that establishment of the Preserve is permissible in principle under the existing terms of the Easement, the Resolution neither requires nor permits any specific action, or any physical change to the Wilson property.”

As already noted, appellants argued, in the alternative, that the Resolution was a project because of its potential use as precedent for the use of conservation property for the benefit of commercial projects. Evidently the appellants had no precedent to cite for this argument. The Court found it significant that apart from the idea of benefitting a commercial project, the physical changes “contemplated” by the use allowed under the Resolution were “already expressly permitted under the existing terms of the Easement.”

Because the Court held that that the Resolution did not constitute “approval of a project” the request for an injunction was denied.

Decision available at

2 comments to Tresch v. County Of Sonoma

  • This is scarily close to a proposal made in Washington State several years ago suggesting that the development rights under existing conservation easements could be accessed to utilize in transfer of development rights programs. It is using existing/previous conservation measures to “mitigate” for a new/future action.

  • I find the case interesting in that regard and also because of the fuzzy lines between a holder’s “clarifying” an easement, amending it, or giving consent (passively or actively) to allow a new use or activity on the property.