CEQA Developments

First District Holds Public Agency’s Inadvertent Disclosure of Privileged Documents In Response To PRA Request Does Not Waive Privilege; Decision Has Implications For Administrative Record Preparation Process In CEQA And Other Actions

Posted in Administrative Record, Land Use, Legislation, Litigation, Reform

On July 31, 2015, the Court of Appeal for the First Appellate District, Division One, filed a 23-page published opinion holding that the inadvertent disclosure of attorney-client privileged and work product protected documents by a public agency in response to a Public Records Act (“PRA”) request did not waive the privilege. Newark Unified School District v. The Superior Court of Alameda County (Elizabeth Brazil, Real Party in Interest) (2015) ___ Cal.App.4th ___, 2015 WL 4594095. While the PRA request and responses at issue were not made in the context of litigation by the requesting party against the responding public agency, the Court’s holding has implications for that scenario, which is a common occurrence in CEQA and other litigation against public agencies. Continue Reading

CEQA Litigation Abuses Documented By New Empirical Study Of Recent Case Filings

Posted in Climate Change/GHG, Land Use, Legislation, Litigation, Reform, Remedies, Standing, Uncategorized

A 138-page report, including 371 footnotes and a 30-page appendix listing all properly documented CEQA lawsuits filed in California over its 3-year study period (2010-2012), has been posted by its authors, Holland & Knight attorneys Jennifer Hernandez, David Friedman and Stephanie DeHerrera (the “authors”) on their firm’s website. The study is entitled “In the Name of the Environment” and subtitled “How Litigation Abuse Under the California Environmental Quality Act Undermines California’s Environmental, Social Equity and Economic Priorities – and Proposed Reforms to Protect the Environment From CEQA Litigation Abuse.” Based on my review, the study will be a valuable and interesting read for environmental and land use lawyers, consultants, and others regularly involved with or interested in the CEQA process. That said, its findings and conclusions will not come as any surprise to those on the front lines of CEQA litigation. Continue Reading

The “Old College Try” Flunks Out: California Supreme Court Holds CEQA Mitigation Obligation For CSU Campus Expansion Projects Extends Beyond Unsuccessful Effort To Obtain Earmarked Legislative Appropriation

Posted in Alternatives, Cumulative Effects, Exactions, Legislation, Mitigation, Standard of Review

In an August 3, 2015 decision that impacts the California State University’s (CSU) plans to expand its campuses across the state, the California Supreme Court has rejected CSU’s arguments that mitigation of its projects’ off-site impacts through the payment of “fair share” fees is legally infeasible unless the Legislature appropriates funding specifically earmarked for that purpose. City of San Diego, et al. v. Board of Trustees of the California State University (2015) ___ Cal.4th ___, 2015 WL 4605356 (Case No. S199557). The Supreme Court thus affirmed the court of appeal’s judgment decertifying CSU’s 2007 EIR and related findings of infeasibility and statement of overriding considerations for its San Diego State University (SDSU) campus expansion project. Continue Reading

Fourth District Expounds On CEQA’s Responses To Comments Rules – And Abuses of the Process – As Well As Other Issues In Upholding Supplemental EIR For Expanded Orange County Jail Facility

Posted in Baseline, Cumulative Effects, Litigation, Mitigation, Standard of Review, Subsequent Review

In an opinion filed June 12 and ordered published on July 6, 2015, the Fourth District Court of Appeal affirmed the trial court’s judgment upholding a supplemental EIR (“SEIR 564”) for a long-planned expansion of the James A. Musick Jail Facility to accommodate 7,584 inmates. City of Irvine v. County of Orange (4th Dist., Div. 3, 2015) 238 Cal.App.4th 526. The appellate decision represents the culmination of roughly three decades of litigation efforts by the neighboring City of Irvine to stop the jail expansion. It focuses on issues including the propriety of a “supplemental” EIR, the adequacy of the SEIR’s analyses of the project’s impacts on traffic and loss of agricultural lands, and the adequacy of its responses to comments. Continue Reading

Fourth District Holds Losing CEQA Plaintiff’s Mooted Appeal Was Not “Catalyst” To City’s Revocation Of Project Entitlements After Developer Abandoned Project; Trial Court’s Denial Of Private Attorney General Fee Motion Affirmed

Posted in Administrative Record, Fees and Costs, Litigation, Remedies, Standard of Review

In an opinion filed June 8, and ordered published on July 6, 2015, the Fourth Appellate District Court of Appeal affirmed the trial court’s judgment denying a CEQA plaintiff’s motion for attorneys’ fees under CCP § 1021.5, California’s private attorney general statute. Coalition for a Sustainable Future In Yucaipa v. City of Yucaipa (Target Stores, Inc., Real Party In Interest) (4th Dist., Div. 2, 2015) 238 Cal.App.4th 513.  The Court’s opinion explicates in detail and applies the rules governing such motions when brought on a catalyst theory, and does so in a rather unique procedural context – one in which the moving party was an unsuccessful CEQA plaintiff whose appeal of an adverse judgment became moot as a result of the developer’s abandonment of the challenged project for reasons wholly unrelated to plaintiff’s action. Continue Reading

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) 237 Cal.App.4th 1005. 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) 237 Cal.App.4th 163. 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, 61 Cal.4th 435 (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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