In a published opinion filed July 21, 2016, the Second District Court of Appeal affirmed the trial court’s judgment rejecting plaintiffs/residential neighbors’ (“Appellants”) CEQA challenge to the City of Redondo Beach’s (“City”) approval of 4,080 square foot car wash/coffee shop (on a 25,000 square-foot urban lot) based on CEQA Guidelines § 15303’s “Class 3” categorical exemption for development of “new, small facilities or structures [and] installation of small new equipment and facilities in small structures.”  Steven Walters, et al. v. City of Redondo Beach (Redondo Auto Spa, et al., Real Parties in Interest) (2d Dist., Div. 6, 2016) ___ Cal.App.4th ___, 2016 WL______, Case No. B258638.

Continue Reading Second District Upholds Application of CEQA’s Class 3 Categorical Exemption For New Small Structures To City’s Approval of Small Car Wash/Coffee Shop Project, Rejects Appellants’ Attempt To Invoke Unusual Circumstances Exception

In a short but significant published opinion filed July 19, 2016, the First District Court of Appeal affirmed the San Francisco County Superior Court’s judgment of dismissal following the sustaining of demurrers (without leave to amend) to a CEQA action as time-barred.  Communities for a Better Environment, et al. v. Bay Area Air Quality Management District (Kinder Morgan Material Services, LLC, et al., Real Parties In Interest) (1st Dist., Div. 1, 2016) ____ Cal.App.4th ________, 2016 WL_____________, Case No. A14364.  The Court of Appeal held there was no reasonable possibility that plaintiffs (CBE) could amend the mandamus petition to allege their CEQA action was timely filed by virtue of the discovery rule because that rule does not apply where one of the triggering events of CEQA’s statute of limitations has occurred.

Continue Reading Discovery Rule Does Not Postpone Accrual of CEQA Cause of Action; Events Specified In CEQA Statute of Limitations Provide Constructive Notice of Project Approval or Commencement

In an opinion filed June 15, and ordered partially published on July 13, 2016, the Fourth District Court of Appeal reversed the trial court’s judgment requiring the County of San Bernardino to prepare an EIR instead of a mitigated negative declaration (MND) for its approval of a conditional use permit (CUP) authorizing a 9,100 square-foot Dollar General retail store on a 1.45-acre lot in Joshua Tree. Joshua Tree Downtown Business Alliance v. County of San Bernardino (Dynamic Development, LLC, Real Party in Interest) (4th Dist., Div. 2, 2016) ___ Cal.App.4th ___, 2016 WL _____, Case No. E062479.

Continue Reading Fourth District Holds Non-Expert Opinion Fails To Support “Fair Argument” Under CEQA That Approval of Non-Regional Retail Store In Joshua Tree Would Cause Urban Decay

In the published part of a partially published opinion filed July 11, 2016, the Second Appellate District Court of Appeal held that Public Resources Code § 21168.9 does not authorize an appellate court to issue and supervise compliance with a writ of mandate on direct appeal, but, rather, such a matter must be remitted to the trial court with appropriate directions.  Center for Biological Diversity v. Department of Fish and Wildlife (The Newhall Land and Farming Company, Real Party in Interest) (5th Dist., Div. 5, 2016) ___ Cal.App.4th ___, 2016 WL ______, Case No. B245131.  The Court thus rejected the real party developer’s motion (on remand of the case from the Supreme Court) arguing that CEQA’s “general principle” of expediting litigation and specific language in its remedies statute (Pub. Resources Code, § 21168.9) authorized such action.

Continue Reading CEQA Remedies Statute Does Not Authorize Appellate Court To Issue Writ And Supervise Compliance On Direct Appeal, Holds Second District In Partially Published Decision On Remand In Newhall Ranch Case

The Association of Environmental Professionals (AEP) has developed a new CEQA reference website designed to provide detailed, authoritative, and easy to understand information on CEQA and CEQA compliance.  While the site went live in April 2016, it is still in the process of development; it can be accessed by going to www.califaep.org and clicking on the CEQA Portal logo.
Continue Reading AEP Launches New CEQA Portal Website As Compliance Resource

As a brief follow up to my earlier posts of April 26, May 4, and May 12, 2016, it appears that supplemental and amicus briefing has ended and that the matter has now been submitted for decision in the important Supreme Court “subsequent review” case, Friends of the College of San Mateo Gardens v. San Mateo Community College District, Case No. S214061.

Continue Reading Supreme Court CEQA Subsequent Review Case Briefing Completed And Case Submitted (Apparently)

In an order filed June 17, 2016, the Court of Appeal for the Fourth Appellate District (Division 2) modified its opinion filed April 22, and ordered partially published May 20, 2016, in People for Proper Planning v. City of Palm Springs (2016) ___ Cal.App.4th ___, 2016 WL 1633062.  The modification, which did not affect the judgment, substituted at page 8 of the prior slip opinion a paragraph discussing the operation of categorical exemptions and the “unusual circumstances” exception thereto, and cited to the relevant standards enunciated by the Supreme Court’s decision in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1105, 1114.  It also added a footnote to page 9 stating:  “The City does not dispute that this case presents “unusual circumstances.””

Continue Reading Fourth District Modifies CEQA Categorical Exemption Opinion Involving Palm Springs General Plan Amendment Without Altering Judgment

In a partially published opinion filed June 21, 2016, the Court of Appeal for the First Appellate District reversed in part the Mendocino County Superior Court’s judgment denying a writ petition challenging the City of Ukiah’s approvals of a Costco warehouse/gas station project on CEQA and zoning law grounds.  Ukiah Citizens for Safety First v. City of Ukiah (1st Dist., Div. 3, 2016) _____ Cal.App.4th _____, 2016 WL 3438353.  The 10-page published portion of the Court’s 27-page opinion held the City’s EIR and project approvals must be set aside and the EIR’s energy analysis brought into compliance with CEQA; the remaining unpublished portion of the opinion (not discussed in detail in this post) agreed with and affirmed the trial court’s rulings that the EIR’s transportation/traffic and noise analyses were adequate and that the project was not inconsistent with applicable zoning requirements.

Continue Reading Deficient CEQA Guidelines Appendix F Energy Impacts Analysis Causes First District To Pull The Plug On Ukiah Costco Project EIR

In a decision filed May 25, and belatedly ordered published June 15, 2016, the Fourth District Court of Appeal affirmed and reversed in part a judgment of the San Bernardino County Superior Court.  It affirmed the judgment to the extent it held the Wal-Mart Tamarisk Marketplace Project (Project) EIR inadequately analyzed the Project’s GHG emissions and that the Project was inconsistent with the City of Victorville’s (City) General Plan; it reversed to the extent the judgment failed to also find that City violated CEQA by not recirculating the EIR and violated the Subdivision Map Act (Map Act) by failing to make all findings required by Government Code § 66474.  (Spring Valley Lake Association v. City of Victorville (Wal-Mart Stores, Inc., Real Party in Interest) (4th Dist., Div. 1) ___ Cal.App.4th ___, 2016 WL 3098915.)

 

Continue Reading Fourth District Holds Wal-Mart Victorville Project EIR Violates CEQA; Project Approval Findings Violate Map Act; And Project Is Inconsistent With General Plan