CEQA Developments

The Limits of CEQA Mitigation – Recent Judicial Applications of Nollan and Dolan

Posted in Litigation, Mitigation, Preemption, Remedies

Perhaps foremost among the judicially recognized fundamental constraints on lead agencies’ power to impose various types of mitigation measures on project approvals in the CEQA process is the “doctrine of unconstitutional conditions” explicated in the Nollan/Dolan cases and their progeny.

The CEQA Guidelines explicitly acknowledge applicable constitutional requirements that mitigation measures must have an “essential nexus” to a legitimate government interest, and that those imposed as ad hoc exactions must bear a “rough proportionality” to the project’s adverse impacts.  (14 Cal. Code Regs., § 15126.4(a)(4)(A), (B), citing Nollan v. California Coastal Com’n (1987) 483 U.S. 825, 837; Dolan v. City of Tigard (1994) 512 U.S. 374, 391; Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, 866-877.)

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Revised CEQA Chapter of Miller & Starr Treatise Is Published

Posted in Uncategorized

I’m pleased to announce that Chapter 25A., “California Environmental Quality Act (CEQA),” of Miller & Starr, California Real Estate 3d (the “Book”), revised and updated as of October 2014 by this blog’s author, has now been published by Thomson Reuters.  The revised CEQA chapter, which has been extensively rewritten, expanded, and updated with recent authorities, is currently available online through www.next.westlaw.com.  Print versions will be shipped to hard copy subscribers of the Book shortly.

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Fourth District Addresses CEQA Issues Concerning Standing, Mitigation,Baseline, Piecemealing, And Responses To Comments In Affirming Judgment Upholding Perris Dam Remediation Program EIR

Posted in Baseline, Litigation, Mitigation, Recirculation, Reform

In a published decision filed October 31, 2014 (Paulek v. California Department of Water Resources (4th Dist., Div. 2, 2014) ___ Cal.App.4th ____, Case No. E060038), the Fourth District Court of Appeal affirmed the Riverside County Superior Court’s judgment denying a petition for a writ of mandate challenging an EIR for the Perris Dam Remediation Project.  The Department of Water Resources’ (“DWR”) DEIR proposed three activities:  (1) remediating the dam’s structural seismic deficiencies; (2) replacing its outlet tower; and (3) creating a new “Emergency Outlet Extension.”  The FEIR addressed a modified project including only the first two components and splitting the emergency outlet extension into a separate project and environmental review process.

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Supreme Court Finally Schedules Oral Argument In CEQA Categorical Exemption Case

Posted in Exemptions, Legislation, Litigation, Reform

At long last, the California Supreme Court has scheduled oral argument in the case of Berkeley Hillside Preservation, et al. v. City of Berkeley, Supreme Court Case No. S201116.  By its long-awaited order issued October 31, 2014, the Court has now set argument in the matter for 9:00 a.m., December 2, 2014, in Los Angeles.

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Supreme Court Adds Another CEQA Case To Its Docket, Will Review Fifth District’s Sierra Club v. County of Fresno (“Friant Ranch”) Decision

Posted in Litigation, Mitigation, Recirculation, Reform

On October 1, 2014, the California Supreme Court  granted the Real Party in Interest developer’s petition for review in Sierra Club v. County of Fresno (5th Dist. 2014) 226 Cal.App.4th 704, now unciteable and pending review as Supreme Court Case No. S219783.  The significant portions of the Court of Appeal’s decision were previously summarized in detail several months ago in this blog.  (SeeFifth District Decides Significant CEQA Air Quality/Health Impact Analysis and Mitigation Issues in the Sierra Club v. County of Fresno” by Arthur F. Coon, posted June 16, 2014.)

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Fall 2014 CEQA Roundup: Legislative and Regulatory Developments

Posted in Historic and Cultural Resources, Legislation, Mitigation, Reform

A number of recent legislative and regulatory developments in or related to CEQA will impact public agencies, developers, and practitioners in the coming year. Some significant recent developments include:

SB 743 Implementation/New Ways to Measure Transportation Impacts under CEQA. 

As previously discussed in this blog (see OPR Mulls Change in CEQA Traffic Metrics, OPR to Review Specific CEQA Guidelines Topics Proposed for 2014 Update Solicits Public InputCEQA, Sausages, And the Art of The Possible: A Closer Look at SB 743′s General CEQA Reform Provisions), the Governor’s Office of Planning and Research is currently analyzing potential alternatives to the “level of service” metric for analyzing transportation impacts under CEQA, as mandated by SB 743.  OPR has released a “preliminary discussion draft” of a new section 15064.3 of the CEQA Guidelines which sets forth the new metric, along with revisions to Appendix F identifying potential alternatives and mitigation measures.

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First District Holds CEQA’s Application To Public Agency’s Approval of Railroad Operations Is Preempted By Federal Law Despite Agency’s Agreement To Conduct CEQA Review And Preparation of EIR

Posted in Exemptions, Legislation, Litigation, Preemption, Reform, Remedies

The North Coast Railroad Authority (NCRA), a public agency established by state law, contracted with Northwestern Pacific Railroad Company (NWPRC) to allow NWPRC to conduct freight services on tracks controlled by NCRA.  Petitioner groups Friends of The Eel River (FOER) and Californians for Alternatives to Toxics (CAT) filed mandate petitions under CEQA challenging NCRA’s EIR and approval of the operations.  In affirming the trial court’s judgment denying the petitions, the First District Court of Appeal – in addressing what it termed “an issue of first impression in California” — followed uniform Federal law in holding the Interstate Commerce Commission Termination Act (ICCTA; 49 U.S.C. § 10101 et. seq.) grants the Surface Transportation Board (STB) exclusive jurisdiction over rail operations and broadly exempts state and local laws that impose “permitting or preclearance requirements (including environmental requirements)” on railroad operations or activities.  Friends of the Eel River v. North Coast Railroad Authority (1st Dist., Div. 5, 2014) ___Cal.App.4th ___, 2014 WL 4809456 (opn. filed 9/29/14).  In so holding that the ICCTA preempted CEQA’s application to a project involving railroad operations and thus barred Petitioners’ actions, the Court rejected Petitioners’ arguments that NCRA and NWPRC were estopped to assert federal preemption as a defense by NCRA’s agreement to conduct CEQA review, their positions in prior proceedings, and/or NCRA’s (later-rescinded) certification of an EIR.

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Attorney Labor For Preparing CEQA Administrative Record Is Recoverable Cost Where Specialized Knowledge Required, Holds Fourth District in Partially Published Opinion

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

In a partially-published opinion filed September 29, 2014, the Fourth District Court of Appeal affirmed an order and judgment permitting the County of San Diego to recover actual labor costs incurred for an attorney and paralegals to take over and complete preparation of an administrative record in a CEQA case where the petitioner had elected, but failed, to do so. The Otay Ranch, L.P. v. County of San Diego (2014) __ Cal.App.4th __, Case No. D064809.

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Governor Brown Is Not CEQA “Public Agency,” Holds Third District In Indian Casino Case

Posted in Legislation, Litigation, Reform

In a published decision filed September 24, 2014, the Third District Court of Appeal (per Justice Robie) held that CEQA’s definition of a “public agency” that is subject to its requirements (see Pub. Resources Code, § 21063) applies only to governmental bodies, not individuals.  Governor Brown was therefore not subject to CEQA compliance as a prerequisite to his concurrence in the Secretary of the Interior’s (“Secretary”) federal determination made under the Indian Gaming Regulatory Act (“Indian Gaming Act”; 25 U.S.C. § 2701 et seq.) that a new Indian gaming establishment in Madera County would not be detrimental to the surrounding community.  Picayune Rancheria of Chukchansi Indians v. Edmund G. Brown, Jr. (NP Fresno Land Acquisitions LLC, RPI) (3d Dist. 2014) ____ Cal.App.4th ____, No. C074506.

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CEQA Administrative Record Preparation Costs – Who Pays and When? First District Provides Guidance In Coalition For Adequate Review v. City and County of San Francisco

Posted in Administrative Record, Fees and Costs, Litigation

In a published decision filed September 15, 2014, the First District Court of Appeal reversed and remanded a trial court’s post-judgment order granting an unsuccessful CEQA petitioner’s motion to tax the entire $64,144 cost bill of respondent City.  Coalition for Adequate Review v. City and County of San Francisco (1st Dist. 2014) ___ Cal.App.4th ____, Case No. A135512.

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