CEQA Developments

State Lands Commission’s CEQA Review of SF Bay/Delta Sand Mining Project Approval Is Adequate, But Fails to Fulfill Obligation to Consider Public Trust Doctrine

Posted in Administrative Record, Alternatives, Baseline, Cumulative Effects, Land Use, Legislation, Public Trust Doctrine, Recirculation, Responsible and Trustee Agencies

The First District Court of Appeal held the California State Lands Commission’s (“CSLC”) EIR for a project involving the lease of sovereign lands beneath San Francisco Bay for private dredge mining of sand complied with CEQA; however, it partially reversed the trial court’s judgment denying a writ because the record failed to demonstrate CSLC’s compliance with the public trust doctrine. San Francisco Baykeeper, Inc. v. California State Lands Commission (Hanson Marine Operations, Inc., et al., Real Parties In Interest) (1st Dist., Div. 4, 2015) ___ Cal.App.4th ___, 2015WL 7271956, filed 11/18/15.

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If A Tree Falls In The (Urban) Forest … Does CEQA Apply? Sixth District Holds City Of Santa Cruz’s Amendment Of Tree Protection Ordinance Not Categorically Exempt

Posted in Exemptions, Historic and Cultural Resources, Litigation, Standard of Review

When California local governments stretch their resources too far to regulate private conduct and property rights in the name of environmental protection, CEQA can make it quite onerous to undo what has been done. And one can rest assured that if any additional trees might be allowed to “fall in the forest,” CEQA plaintiffs will be close by with their ears peeled to prevent the tragedy. Such are the fundamental philosophical lessons of the Sixth District Court of Appeal’s recently published opinion in Save Our Big Trees v. City of Santa Cruz (2015) ___ Cal.App.4th ___, 2015WL 6437785, filed on October 23, 2015.

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Berkeley Hillside CEQA Cat Ex Case Redux: Kapors Get Their Mansion, First District’s Belatedly Published Opinion Upholds City’s Decision That “Unusual Circumstances” Exception Does Not Apply

Posted in Exemptions, Land Use, Litigation, Mitigation, Reform, Standard of Review

On remand following a landmark California Supreme Court decision, the First District Court of Appeal filed its opinion affirming the trial court’s judgment on September 23 and later ordered it published on October 15, 2015. Berkeley Hillside Preservation, et al. v. City of Berkeley (1st Dist., Div. 4, 2015) ___ Cal.App.4th ___, 2015WL 6470455. Readers can refer to my previous post for a complete treatment of the case’s facts and the Supreme Court’s rulings. Key aspects and points of the Court of Appeal’s 19-page opinion on remand include:

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Second District Rejects CEQA And Fair Transit Hearing Challenges To LA Metro’s Westside Subway Extension Project In Lengthy Published Opinion

Posted in Alternatives, Approval/Pre-Commitment, Land Use, Recirculation, Standard of Review

In a 65-page opinion certified for publication and filed October 22, 2015, the Second Appellate District Court of Appeal affirmed the Los Angeles County Superior Court’s judgment denying writ petitions by the City of Beverly Hills (“City”) and the Beverly Hills Unified School District (“District”). Petitioners and Appellants’ actions challenged respondent Los Angeles County Metropolitan Transportation Authority’s (“LA Metro”) EIS/EIR and related approval of the Westside Subway Extension Project (the “Project”). The Project involves the extension of Metro’s Purple Line heavy rail transit (HRT) subway system to the Westside of Los Angeles through the addition of 7 stations and 9 miles of subway line, and includes a new Century City station (the “Constellation station”) to be reached through a tunnel to be constructed underneath Beverly Hills High School. Beverly Hills Unified School District v. Los Angeles County Metropolitan Transportation Authority (Case No. B256605); The City of Beverly Hills v. Los Angeles County Metropolitan Transportation Authority (Case No. B256753) (2d Dist., Div. 4, 2015) ____ Cal.App.4th ___________, 2015WL 6383431.

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Satisfying State Compensatory Mitigation Requirements Under CEQA On Federal Conservation Lands: CDFW And BLM Agree To Cooperate To Make It Happen

Posted in Land Use, Legislation, Mitigation, Reform, Responsible and Trustee Agencies, Uncategorized

On October 2, 2015, the Bureau of Land Management (“BLM”) and the California Department of Fish and Wildlife (“CDFW”) entered into a 12-page “agree[ment] to work with each other to conserve biological and natural resources on federal public lands administered by the BLM within California.” (10/2/15 Agreement By And Between The United States Bureau Of Land Management And The California Department Of Fish And Wildlife (“Agreement”), at p. 1.)  The Agreement states it was developed “for the purpose of memorializing and making specific [the agencies’] cooperation and coordination to protect and conserve fish, wildlife, plants and their habitat within California” and that it “supplements” an earlier, November 27, 2012 MOU between BLM and CDFW.  (Ibid.) Continue Reading

Proposed CEQA Guidelines Amendments: A Critique of OPR’s “Preliminary Discussion Draft” (Part III – Proposed “Minor Technical Improvements”)

Posted in Approval/Pre-Commitment, Cumulative Effects, Exactions, Exemptions, Legislation, Mitigation, Reform, Responsible and Trustee Agencies

On September 18 and October 5, 2015, I posted Parts I and II, respectively, of my comments on OPR’s August 11, 2015 Preliminary Discussion Draft of its “Proposed Updates to the CEQA Guidelines” (the “Discussion Draft”). While the deadline for public comments on the 145-page Discussion Draft was October 12, 2015, there undoubtedly will be future opportunities for public input on the proposed Guidelines amendments during the formal rulemaking process that will ultimately be conducted by the Natural Resources Agency, if not before.  This concluding post on the Discussion Draft covers its final part, which sets forth about a dozen proposed revisions that OPR characterizes as merely “Minor Technical Improvements.”  (Discussion Draft, at 108-145.)

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Fourth District Addresses CEQA Baseline Issues In Partially Published Opinion Upholding EIR For Carlsbad Shopping Mall Renovation

Posted in Administrative Record, Baseline, Fees and Costs, Mitigation, Responses to Comments, Standard of Review

In an opinion filed September 10, and later ordered partially published on October 9, 2015, the Court of Appeal affirmed the substance of a judgment upholding an EIR for a regional shopping center renovation project in Carlsbad, California, reversing only with respect to certain cost award issues treated in an unpublished portion of the opinion. North County Advocates v. City of Carlsbad (Plaza Camino Real, LP, et al., Real Parties in Interest) (4th Dist., Div. 1, 2015) ____ Cal.App.4th ______, 2015 WL 5895477. The published portions of the opinion address the case’s facts, applicable CEQA rules and standards of review, and traffic baseline issues; the unpublished portions address issues concerning traffic mitigation measures, the adequacy of the City of Carlsbad’s (“City”) responses to comments, and the propriety of the various aspects of the trial court’s record preparation cost awards that were made to the City and real parties (“Westfield”) as prevailing parties.

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Proposed CEQA Guidelines Amendments: A Critique of OPR’s “Preliminary Discussion Draft” (Part II – Proposed “Substance” and Major “Technical Improvements”)

Posted in Baseline, Climate Change/GHG, Cumulative Effects, Legislation, Litigation, Mitigation, Reform, Responses to Comments, Subsequent Review, Water Supply

On September 18, 2015, I posted a “Part I” piece on the “efficiency improvements” category of OPR’s Preliminary Discussion Draft of its “Proposed Updates to the CEQA Guidelines” (the “Discussion Draft”). That post can be found here. This follow up post (Part II) covers OPR’s most significant proposals contained in the Discussion Draft’s remaining two categories, i.e., its two proposed “Substance” improvements and its first three proposed “Technical” improvements, but excludes the remaining dozen proposals that OPR classifies as only “minor technical improvements.”

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Supreme Court Depublishes Lengthy CEQA Categorical Exemption Case

Posted in Approval/Pre-Commitment, Exemptions, Exhaustion, Land Use, Legislation, Litigation, Mitigation, Standing, Uncategorized

On September 9, 2015, the California Supreme Court denied review and decertified the Fourth District Court of Appeal’s previously published opinion in Albert Thomas Paulek v. Western Riverside Regional Conservation Authority, which had appeared at 238 Cal.App.4th 583. A discussion of the issues presented by the case and my analyses of the Court of Appeal’s reasoning on them can be found in my post on the originally published opinion. (See “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,” by Arthur F. Coon, posted July 2, 2015.)

The Supreme Court’s depublication order means that while the decision remains binding on the parties to the case, it will not be citable as precedential authority under California law.

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First District Applies CEQA Exhaustion/Standing Rules, Upholds Judgment Rejecting Claim of Statutory Exemption for Controversial State Lands Commission Land Exchange Agreement

Posted in Exemptions, Exhaustion, Litigation, Standing

In a published decision filed September 17, 2015, the First District Court of Appeal affirmed the trial court’s judgment granting a writ of mandate and finding that a proposed land exchange agreement was not statutorily exempt from CEQA review. Defend Our Waterfront v. California State Lands Commission, et al (San Francisco Waterfront Partners II, LLC, et al) (1st Dist., Div. 4, 2015) ___ Cal.App.4th ___, 2015 WL 5450294. The underlying facts are straightforward, as is the Court’s holding interpreting CEQA’s statutory exemption that applies to “settlements of title and boundary problems by the State Lands Commission and to exchanges or leases in connection with those settlements.” (Pub. Resources Code, § 21080.11.) Perhaps more interesting, however, is the Court’s treatment (partly in dicta) of CEQA’s statutory standing and exhaustion requirements as embodied in Public Resources Code § 21177. Continue Reading