In a lengthy, 65-page opinion filed December 8, 2014 (of which fully two-thirds was unpublished), the Fifth District Court of Appeal affirmed the Fresno County Superior Court’s judgment upholding the EIR, Conditional Use Permit (CUP), and reclamation plan approvals for the Carmelita Mine and Reclamation Project, an aggregate mining and processing operation proposed to be located at a 1,500-acre site 15 miles east of Fresno. Friends of the Kings River v. County of Fresno (Colony Land Company, L.P., and Carmelita Resources, LLC, RPI) (5th Dist. 2014) ____ Cal.App.4th ____, 2014 WL 6966984. The project contemplates extraction of 1.25 million tons of aggregate per year, from 22 individual mining cells of about 40 acres each, over a period of up to 100 years, with mining and subsequent reclamation activities to proceed on a cell-by-cell basis. Continue Reading
“And all this science, I don’t understand
It’s just my job, five days a week”
– Elton John/Bernard Taupin,
Having seen years of their lofty regional planning efforts come crashing back to Earth, San Diego government entities have had little to be thankful about so far this holiday season on the CEQA front. In an October 29 decision later ordered published on November 24, 2014, the Fourth District Court of Appeal affirmed the San Diego County Superior Court’s judgment setting aside San Diego County’s 2011 general plan update and related program EIR (PEIR). Sierra Club v. County of San Diego (4th Dist., Div. 1, 2014) ___ Cal.App.4th ____, 2014 WL 6657169.
I had occasion earlier this week to attend oral argument at the California Supreme Court in the Berkeley Hillside Preservation v. City of Berkeley case (No. S201116), which involves issues concerning the proper interpretation of and standard of judicial review for the “unusual circumstances” exception to categorical exemptions set forth in the CEQA Guidelines. The matter is now under submission with the high court and a decision is expected by not later than March 2, 2015. Those interested in further details of the argument can access my Law 360 article, as republished on my firm’s website here.
In a 2-1 published opinion filed November 24, 2014, the Fourth District Court of Appeal, Division 1, affirmed and modified the trial court’s judgment granting writ petitions by plaintiff groups challenging the EIR for the San Diego Association of Governments’ (SANDAG) 2050 Regional Transportation Plan/Sustainable Communities Strategy (2050 RTP/SCS). Cleveland National Forest Foundation, et al. v. San Diego Association of Governments, et al. (2014) ___ Cal.App.4th ___, 2014 WL 6614394. SANDAG’s RTP was the first of its kind approved under SB 375, and it sought to better align transportation, land use, and housing so as to achieve regional GHG emissions reductions targets set by the California Air Resources Board (CARB). SANDAG’s assigned targets are to reduce per capita CO2 emissions 7% below 2005 levels by 2020, and 13% below 2005 levels by 2035.
The Third District Court of Appeal, in a published opinion filed November 20, 2014, affirmed the trial court’s order denying plaintiffs’ application for a preliminary injunction seeking to halt construction of a massive new entertainment and sports center in downtown Sacramento. (Adriana Gianturco Saltonstall, et al. v. City of Sacramento (Sacramento Basketball Holdings, LLC, RPI) (3d Dist. 2014) ___ Cal.App.4th ___, 2014 WL 6533058.)
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.)
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.
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.
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.
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. (See “Fifth 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.)