CEQA Developments

Fourth District Holds Agency’s Removal of Conservation Designation From Land Formerly Protected Under MSHCP Is “Project” Subject to CEQA; Class 7 and 8 Categorical Exemptions for Environmentally Protective Regulatory Actions Do Not Apply

Posted in Approval/Pre-Commitment, Exemptions, Exhaustion, Land Use, Legislation, Litigation, Mitigation, Standing

In a 47-page published decision filed June 17, 2015, the Fourth District Court of Appeal reversed the trial court’s judgment denying a writ petition, and held that Respondent Western Riverside County Regional Conservation Authority (“Agency”) must comply with CEQA before “refining” its Multiple Species Habitat Conservation Plan (“MSHCP”) to exclude a 200-acre parcel of ranch land owned by Anheuser-Busch, LLC (“Busch”) from its protections against development. Albert Thomas Paulek v. Western Riverside County Regional Conservation Authority (Anheuser-Busch, LLC, Real Party in Interest) (4th Dist., Div. 2, 2015) ___ Cal.App.4th ___, 2015 WL 3765370. Continue Reading

Fourth District Upholds San Diego’s Balboa Park Revitalization Project Against Land Use Law And CEQA Challenges

Posted in Exhaustion, Land Use, Legislation, Litigation, Standard of Review

In a published decision filed May 28, 2015, the Fourth District Court of Appeal reversed that part of the trial court’s judgment granting a writ of mandate and otherwise affirmed the judgment, thus upholding the City of San Diego’s Balboa Park revitalization project (“Project”) against various land use law and CEQA challenges. Save Our Heritage Organization v. City of San Diego (The Plaza de Panama Committee, Real Party in Interest) (4th Dist.2015) ___ Cal.App.4th ____, 2015 WL 3587805. Continue Reading

California Supreme Court Rules that Ordinance Intended to Increase Number of Affordable Housing Units is a Lawful Exercise of the Police Power

Posted in Affordable Housing, Exactions, Land Use, Police Power, Standard of Review

In one of the most widely followed land use cases in recent years, the Supreme Court of California unanimously upheld the City of San Jose’s affordable housing ordinance because it was intended to advance the constitutionally permissible public purposes of increasing the amount of affordable housing in the community and promoting economically diverse developments. California Bldg. Industry Ass’n v. City of San Jose, __ Cal. 4th __ (June 15, 2015, Case No. S212072). According to the court, such ordinances should be evaluated under a municipality’s broad discretion to regulate the use of real property to serve the legitimate interests of the general public and the community at large, rather than as an exaction imposed to mitigate the adverse impacts of development. Continue Reading

A CEQA Trustee Agency “Muscles Up”: Third District Holds Department of Fish and Wildlife’s Newly Exercised Power To Require Notice Of And Regulate Substantial Water Diversions – Even Absent Streambed Alteration – Was Always Unambiguously Authorized By Fish & Game Code Section 1602

Posted in Litigation, Mitigation, Remedies, Responsible and Trustee Agencies

Under CEQA, a “trustee agency” is a “state agency having jurisdiction by law over natural resources affected by a project which are held in trust for the people of the State of California” and “[t]he California Department of Fish and Game [now Wildlife (“DFW”)] [is such a trustee agency] with regard to the fish and wildlife of the state, to designated rare or endangered native plants, and to game refuges, ecological reserves, and other areas administered by the department.” (14 Cal. Code Regs., § 15386(a).)  CEQA lead agencies are required to provide notice to and consult with DFW and other trustee agencies (among other public agencies and entities) with respect to CEQA documents being prepared by the lead agency for projects that may affect the relevant resources.  (E.g., 14 Cal. Code Regs., § 15086(a)(2) [lead agency shall consult with and request comments on Draft EIR from trustee agencies].)  Development projects requiring work to be done in and around rivers, streams and lakes commonly require the developer – as one of the many project approvals typically required – to enter into what has become popularly known as a “Streambed Alteration Agreement” (“SAA”) with DFW to protect fish and wildlife resources that may be affected by the project.  (See Fish & Game Code, § 1603; Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459, 1518-1521 [discussing statutory provisions for so-called “streambed alteration agreements” and their interplay with CEQA].)

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CEQA Categorical Exemption Case Opinion Ordered Slightly Modified By Supreme Court; Berkeley Hillside Preservation Judgment Is Unaffected

Posted in Exemptions, Legislation, Litigation, Reform

On May 27, 2015, the California Supreme Court filed a 4-page order modifying portions of the majority and concurring opinions previously filed March 2, 2015, in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086. The modifications, made to the majority opinion at pages 1098-1099, 1102, and to the concurring opinion at page 1130, soften the majority’s comparison between (1) the unsuccessful appellants’ position on operation of the unusual circumstances exception to categorical exemptions, and (2) the operation of CEQA’s co-called “common sense” exemption embodied in Guidelines § 15061(b)(3).

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Fourth District Holds CEQA Does Not Require City To Predict ESHA Determinations In Approving Project Over Which Coastal Commission Retains Permitting Jurisdiction, And Applies Deferential Standard In Reversing Trial Court’s General Plan Inconsistency Finding

Posted in Legislation, Litigation, Mitigation, Uncategorized

In a published opinion filed May 20, 2015, the Fourth District Court of Appeal reversed the trial court’s judgment granting mandate relief based on a general plan violation, affirmed its denial of relief under CEQA, and thereby upheld the City of Newport Beach’s approval of a mixed-use development within the coastal zone on the 400-acre Banning Ranch property. Banning Ranch Conservancy v. City of Newport Beach (Newport Banning Ranch LLC, et al., Real Parties in Interest) (4th Dist., Div. 3, 2015) ___ Cal.App.4th ___, 2015 WL 2399347.

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Sixth District Applies CEQA’s “Fair Argument” Standard, Holds That Despite Project’s Compliance With Local Noise Ordinance, EIR Rather Than Mitigated Negative Declaration Is Required Based On Factual, Non-Expert Evidence Of Noise And Traffic Safety Impacts

Posted in Baseline, Fees and Costs, Litigation, Mitigation

On May 7, 2015, the Sixth District Court of Appeal filed a published opinion addressing numerous issues of interest under CEQA’s “fair argument” test for preparing an Environmental Impact Report (“EIR”). Keep Our Mountains Quiet v. County of Santa Clara (Candice Clark Wozniak, as Trustee, Real Party in Interest) (6th Dist. 2015) __ Cal.App.4th __, 2015 WL 2152905.

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Executive Order B-30-15 And CEQA GHG Analysis: Evolving Uncertainty At The Intersection Of Law, Policy And Science

Posted in Climate Change/GHG, Cumulative Effects

I recall that Mike Zischke, co-author of CEB’s excellent CEQA treatise, used to be fond of saying the “normal” or “usual rules” for analyzing cumulative impacts should apply to analysis of a project’s greenhouse gas (GHG) emissions under CEQA. As underscored most recently by Governor Brown’s April 29, 2015 Executive Order B-30-15, the law, policy and science related to GHGs and climate change are evolving rapidly. In the face of such rapid change, is it possible that the “usual rules” are in flux or no longer apply? At the very least, Governor Brown’s much-publicized recent executive order highlights that CEQA analysis of GHG impacts under the “usual rules” has “evolved” into a state of considerable uncertainty and confusion.

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Winners Beware – Fourth District Upholds Trial Court’s Discretion To Drastically Reduce Successful CEQA Plaintiff’s Fees In Granting CCP §1021.5 “Private Attorney General” Award

Posted in Administrative Record, Fees and Costs, Legislation, Litigation, Reform

In an opinion filed March 18 and belatedly ordered published on April 13, 2015, the Fourth District Court of Appeal upheld a trial court’s discretion to award only $19,176 in attorneys’ fees under Code of Civil Procedure § 1021.5 to a successful CEQA plaintiff (SOURCE) who sought $221,198 based on a $110,599 “lodestar” with a multiplier of two. Save Our Uniquely Rural Community Environment v. County of San Bernardino (Al-Nur Islamic Center, Real Party in Interest) (4th Dist., Div. 2, 2015) – Cal.App.4th ___, 2015 WL 1259781. SOURCE, an organization of individuals, had successfully challenged San Bernardino County’s mitigated negative declaration (MND) and conditional use permit (CUP) for real party in interest Al-Nur Islamic Center’s proposed 7,512-square foot Islamic community center and mosque to be located on a 1.54-acre parcel in a residential part of the unincorporated county. Rejecting 5 of its 6 CEQA arguments, the trial court granted SOURCE’s writ petition on the sole ground that county failed to properly analyze the project’s environmental impacts from wastewater disposal, and ordered county to adequately analyze such impacts under CEQA.

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Second District Holds First Tier CEQA Analysis Suffices For Regional Board’s Setting of Novel TMDL For Lake Bed Sediment

Posted in Alternatives, Litigation, Mitigation, Subsequent Review

In a short published opinion, the Second District Court of Appeal rejected federal Clean Water Act, state Porter Cologne Water Quality Control Act, and CEQA challenges to a regional board’s Basin Plan Amendment establishing a total maximum daily load (TMDL) for lake bed sediment in a polluted terminal lake (McGrath Lake). Conway v. State Water Resources Control Board (3/30/15 2d Dist., Div. 6) ____ Cal.App.4th _____, 2015 WL 1417283, 2d Civil No. B252688.

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