In a brief – and somewhat odd – opinion filed April 22, and belatedly ordered partially published on May 20, 2016, the Fourth District Court of Appeal reversed a trial court judgment denying a petition for writ of mandate challenging a General Plan Amendment (GPA) adopted by the City of Palm Springs as categorically exempt from CEQA. People for Proper Planning v. City of Palm Springs (4th Dist., Div. 2, 2016) ____ Cal.App.4th _______, 2016 WL 1633062, Case No. E062725. The Court held the trial court erred in upholding the City’s positions that the GPA, which eliminated minimum density requirements for all residential land use categories, was exempt from CEQA review under the Class 5 categorical exemption and because it allegedly did not change the environmental “baseline,” i.e., the City’s alleged preexisting practice of ignoring the General Plan’s minimum density provisions (and, hence, its allowable density ranges) when acting on residential development applications. In light of its CEQA ruling requiring reversal and further environmental (and necessarily General Plan consistency) analyses by the City, the Court held that it need not reach appellant PFPP’s other arguments that the GPA rendered the General Plan internally inconsistent, and violated statutory requirements that City accommodate its fair share of regional housing needs for all income levels.
Almost five years ago, in September 2011, Miller Starr Regalia launched its first blog, CEQA Developments (www.ceqadevelopments.com), to highlight the firm’s experience and provide an up-to-date resource in the area of CEQA law. As readers and CEQA practitioners can attest, there has been no shortage of “CEQA developments” to analyze and report on over the years, and I fully expect that trend to continue.
At the same time, and while CEQA and land use law go together like “hand and glove,” there have always been and continue to be a great many interesting and important non-CEQA land use developments under distinct laws and legal schemes – including, but not limited to, the Planning and Zoning Law, the Subdivision Map Act, the Brown Act, the Public Records Act, the Elections Code, the Mitigation Fee Act, and the Eminent Domain Law, as well as the Federal and State constitutional provisions prohibiting the taking or damaging of property without payment of just compensation. The firm’s Land Use Practice Group has deep experience and expertise entitling and defending a wide range of development projects, implicating numerous areas of land use law, throughout the state.
In the second of two published opinions filed May 10, 2016, the Fourth District Court of Appeal affirmed the trial court’s judgment upholding the lead agency designation and EIR for a controversial project proposing to pump 50,000 acre-feet annually for a 50-year period from an aquifer underlying Cadiz, Inc.’s Mojave Desert property in San Bernardino County. Center For Biological Diversity, et al. v. County of San Bernardino, et al., (4th Dist., Div. 3, 2016) ____ Cal.App.4th ___, 2016 WL ________ (Case No. G051058). (For my post covering the Court’s related published opinion, see “Fourth District Rejects CEQA Challenges To Large Mojave Desert Groundwater Pumping Project In Separate Published Opinions,” by Arthur F. Coon, posted May 11, 2016.) Continue Reading
In orders issued May 11, 2016, one week after the May 4 oral argument and submission of the cause for decision, the California Supreme Court vacated the submission and ordered supplemental briefing in Friends of the Collage at San Mateo Gardens v. San Mateo County Community College District, Case No. S214061. Continue Reading
In two opinions filed May 10, 2016 (one partially and the other fully published), the Fourth District Court of Appeal rejected a number of CEQA and other challenges to a project proposing to pump 50,000 acre-feet of groundwater per year for a 50-year period from a Mojave Desert aquifer in the County of San Bernardino (“Project”). The Project – proposed by a “public-private partnership” between lead agency Santa Margarita Water District (“SMWG”) and the overlying landowner, Cadiz, Inc. (“Cadiz”) – seeks to beneficially use and prevent the loss of groundwater, some portion of which would otherwise drain to two dry lakes where it would evaporate or become unpotable brine. The fresh water pumped from the aquifer would be conveyed through 43 miles of underground pipeline to the Colorado River Aqueduct, which would then transport it to supply a number of Southern California Water agencies and users.
The California Supreme Court held a lively oral argument session this morning (May 4, 2016), at 9:00 a.m. in its San Francisco courtroom in the case of Friends of the College of San Mateo Gardens v. San Mateo Community College District (Case No. S214061), which was live streamed for “real time” viewing on the Court’s website. This post attempts to convey a general sense of the Court’s questioning and counsel’s argument in the hour-long session; any mistakes in “translation” are mine, and I apologize for any such errors in advance. (For my prior post briefly describing the case’s facts, legal issues and significance, see “Supreme Court Set to Hear Important CEQA Subsequent Review Case,” by Arthur F. Coon, posted April 26, 2016.) Continue Reading
On May 4, 2016, at 9 a.m. in its San Francisco courtroom, the California Supreme Court will hear oral arguments in yet another of the many significant CEQA cases it has tackled in recent years, this one presenting critically important issues involving the application of CEQA’s “subsequent review” rules. The case – Friends of the College of San Mateo Gardens v. San Mateo Community College District (Case No. S214061) – raises issues regarding the appropriate standard of judicial review and degree of deference CEQA requires to be accorded to a lead agency’s environmental determinations when it approves changes to an already approved project that underwent full (and presumptively adequate) CEQA review in its original form.
The State Bar is holding its 35th Annual Real Property Law Section Retreat on May 20-22, 2016, at the Hyatt Regency Monterey Hotel & Spa, and registration is now open on the Bar’s website. My partner Matt Henderson, a member of the Section’s Executive Committee, will be moderating what promises to be the lively discussion of a panel entitled “The California Supreme Court: Reforming CEQA From The Bench,” at 8 a.m. on May 21. The attorney panelists include Andrew Sabey of Cox Castle & Nicholson, Thomas Henry of Stoel Rives, and myself.
In a published opinion filed March 25, 2016, the Fourth District Court of Appeal affirmed the trial court’s judgment denying a writ petition that challenged a 2013 ordinance of the City of Upland which expressly prohibited mobile marijuana dispensaries within the City. Union of Medical Marijuana Patients, Inc. v. City of Upland (4th Dist., Div. 1, 2016) ___ Cal.App.4th ___, 2016 WL 1169302, Case No. D069293. Because the ordinance merely restated a ban already in effect under an existing 2007 ordinance that was never challenged under CEQA, it lacked the potential to cause direct or reasonably foreseeable indirect physical changes in the environment and was therefore not a “project” subject to CEQA.
In a March 4, 2016 published opinion, the Fourth District Court of Appeal reversed the trial court’s judgment requiring an EIR for a small 12-home rural subdivision project based on the “psychological and social” impacts of the proponent’s related closure of a public horse boarding facility (the “Stock Farm”) which he had operated pursuant to a CUP for 20 years on the 11.6-acre property. Preserve Poway v. City of Poway (Harry A. Rogers, et al., Real Parties in Interest) (2016) ___ Cal.App.4th ___, 2016 WL 891405. In addition to its primary holding that psychological, social and economic impacts are not cognizable under CEQA, the Court rendered a few other interesting rulings, including its application of the Supreme Court’s recent “”CEQA-in-reverse” decision (California Building Industry Ass. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369 (“CBIA”)) in holding that asserted impacts of an existing equestrian events facility (located across the street from the project) on future project residents were also beyond CEQA’s scope.