In a lengthy opinion filed February 28, 2014, and ordered partially published on April 1, 2014, the Third District Court of Appeal reversed the Yolo County Superior Court’s judgment denying a CEQA writ petition challenging the City of Woodland’s EIR and related approvals of a 234-acre regional shopping center development – requiring an annexation application, pre-zoning, and a general plan amendment – on undeveloped agricultural land at the City’s periphery. California Clean Energy Committee v. City of Woodland, ___ Cal.App.4th ___, 2014 WL 1321097, Case No. C072033 (3d Dist. 2/28/14; part. pub. order 4/1/14). In reversing and remanding to the trial court to grant plaintiff California Clean Energy Committee’s requested writ, the opinion didn’t break any significant new legal ground. However, it did serve up a few reminders to local agencies and project developers of some CEQA basics, and also to be careful in framing your CEQA findings.
In an exceptionally thorough and well-reasoned opinion, the Third District Court of Appeal affirmed the trial court’s judgment denying a writ petition challenging respondent 14th District Agricultural Association’s (District) approval of a rodeo event to be held at the Santa Cruz County Fairground pursuant to the CEQA Guidelines’ Class 23 categorical exemption. Citizens For Environmental Responsibility v. State of California ex rel 14th District Agricultural Association (3d Dist. 3/26/14) ___ Cal.App.4th ____, ___Cal.Rptr.3d ____, 2014 WL 1232608. In doing so, the Court addressed and clarified important issues regarding (1) the scope of the Class 23 exemption for “normal operations of existing facilities for public gatherings” (14 Cal. Code Reg., § 15323), (2) when alleged “mitigation” measures disqualify a project from utilizing a categorical exemption, and (3) operation of the “unusual circumstances” exception to categorical exemptions. (14 Cal. Code Reg., § 15300.2(c).)
In a lengthy, mostly published opinion filed on March 20, 2014, the Second District Court of Appeal reversed the trial court’s judgment granting a writ of mandate, and upheld – as against state law challenges brought by a bevy of environmental plaintiffs – the EIS/EIR (EIR) and related resources management/conservation plan approvals of the California Department of Fish and Wildlife (CDFW) and U.S. Army Corps of Engineers (ACE) for the 12,000 acre Newhall Ranch Specific Plan site. Center for Biological Diversity, et al. v. Department of Fish and Wildlife (The Newhall Land and Farming Company, RPI) (2d Dist. 2014) __ Cal.App.4th __, ___ Cal.Rptr.3d ___, No. B245131. Two decades into the planning process, the controversial Northwestern LA County project ultimately contemplates the massive development of five villages containing residential, mixed-use and non-residential land uses, with up to 21,308 dwelling units (and 57,903 residents), 629 acres of mixed use development, 67 acres of commercial uses, 249 acres of business park uses, and numerous other public and open space uses and amenities, to be built out over a 25 to 30 year period. The land use approvals at issue in the case included a Resource Management and Development Plan, Spineflower Conservation Plan, associated Master Streambed Alteration Agreement, and related Incidental Take Permits (ITPs) issued by CDFW under the California Endangered Species Act (CESA). The 5,828 page EIR focused on the resource management and conservation plans required to be in place prior to the residential and commercial construction components of the project.
In a rare grant of review of an unpublished case, the California Supreme Court granted review on January 15, 2014 of the decision in Friends of the College at San Mateo Gardens v. San Mateo County Community College District (1st Dist., Div. 1, 9/26/13) to address the following issue presented by the District: “If a lead agency approves modifications to a previously reviewed and approved project through an addendum, may a court disregard the substantial evidence underlying the agency’s decision to treat the proposed action as a change to a project rather than a new project, and go on to decide as a matter of law that the agency in fact approved a “new” project rather than a modification to a previously approved project, even though this “new project” test is nowhere described in CEQA or the [CEQA] Guidelines?”
Sometimes in the land use world, municipal planners and other regulators need to be reminded of the simple things. For example, a fundamental precept of due process is that the rules cannot be changed in the middle of the game because doing so is arbitrary and unfair. To some extent, this basic concept underlies or informs the law of vested rights, estoppel, stare decisis, and statutory interpretation.
The Second District’s recently published decision in Tower Lane Properties v. City of Los Angeles (2nd Dist. 2014) __ Cal.App.4th ___, Case No. B244092, applies simple and well established land use rules that the City of Los Angeles and its planners apparently forgot – or ignored. These include: (1) CEQA applies only to discretionary approvals; (2) grading and building permits are generally not discretionary approvals; (3) approvals of tentative maps for the subdivision of land are discretionary approvals; (4) tentative maps – or any type of subdivision map – are required only for actual subdivisions of land; and (5) an agency’s interpretation of its own ordinance is not entitled to deference if not consistent with the ordinance’s plain language, or not itself longstanding and consistent.
Followers of CEQA reform efforts over the past several years will have observed two general trends: (1) Legislative reform has proven difficult, incremental, and marked by political division and dealmaking; and (2) the Supreme Court has “taken up the slack” by aggressively granting review of and resolving numerous major CEQA issues. In doing so, the high court has brought greater clarity and “common sense” to the jurisprudence defining the parameters and operation of this venerable law – a significant judicial reform effort of which CEQA has been sorely in need. While much remains that could be done to clarify, streamline and modernize CEQA, the Supreme Court’s judicial reform effort continues with seemingly unabated vigor.
In a partially-published opinion filed January 30, 2014, the First District Court of Appeal, Division 3, reversed the trial court’s judgment denying a writ petition, and held that Caltrans must correct certain deficiencies in its EIR for a highway construction project to realign a 1-mile stretch of US Route 101 through Richardson Grove State Park (Park). (Lotus v. Department of Transportation, et al. (1st Dist., Div. 3, 1/30/14) ___ Cal.App.4th ___, 2014 WL 340126.) While rejecting many of appellants’ challenges, the Court of Appeal in the published portion of its opinion held the EIR “failed to properly evaluate the significance of impacts on the root systems of old growth redwood trees adjacent to the highway.”
As previously discussed in this blog, last year’s passage of SB 743 added a requirement in Public Resources Code § 21099(b) that the Governor’s Office of Planning and Research (OPR) develop new CEQA guidelines “for determining the significance of transportation impacts of projects within transit priority areas.” (See “CEQA, Sausages, And The Art of The Possible: A Closer Look at SB 743’s General CEQA Reform Provisions,” posted September 16, 2013; “OPR To Review Specific CEQA Guidelines Topics Proposed for 2014 Update, Solicits Public Input,” posted January 29, 2014.) The impetus behind this change is to find an alternative to the familiar and currently prevalent “level of service” (or “LOS”) standard for analyzing traffic impacts.
The lessons taught by the Fifth District Court of Appeal in its recently-published decision in Protect Agricultural Land v. Stanislaus County Local Agency Formation Commission (City of Ceres, RPI), ___ Cal.App.4th ___, 2014 WL 308137, are rather simple: (1) the validity of final LAFCO approvals may only be challenged through compliance with the validation action procedures of Code of Civil Procedure sections 860 et seq. (Gov. Code, § 56103); and (2) a plaintiff should do its legal research before bringing a CEQA action to ascertain if any special procedural requirements outside of CEQA apply to the particular type of land use approvals it seeks to set aside.
The Governor’s Office of Planning and Research (OPR) will undertake a comprehensive review of the CEQA Guidelines (14 Cal.Code Regs., §15000 et seq) this year and is currently soliciting public input – to be provided not later than COB on February 14, 2014 – on specific possible topics it has developed as a result of stakeholder suggestions and published on its website. OPR’s 7-page document, dated December 30, 2013, and entitled “Possible Topics to be Addressed in the 2014 CEQA Guidelines Update,” can be found at http://www.opr.ca.gov/docs/PossibleTopics2014CEQAGuidelinesUpdate.pdf.