CEQA Developments

“Hot Bench” For Advocates In Supreme Court CEQA Subsequent Review Case

Posted in Baseline, CEQA Guidelines, Legislation, Litigation, Mitigation, Reform, Standard of Review, Subsequent Review

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

Supreme Court Set To Hear Important CEQA Subsequent Review Case

Posted in Baseline, Litigation, Reform, Subsequent Review

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.

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Miller Starr Regalia Attorneys to Speak On CEQA Panel; Marv Starr and Ed Regalia To Be Honored At State Bar Real Property Law Section Retreat In May

Posted in Reform, Uncategorized

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.

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Fourth District Holds CEQA’s Definition of “Project” Does Not Encompass Municipal Ordinance Merely Restating Existing Prohibition of Mobile Marijuana Dispensaries

Posted in CEQA Guidelines, Exemptions, Land Use, Legislation, Litigation, Uncategorized

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.

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Horse Of A Different Color: CEQA Does Not Require EIR Due To Psychological And Social Impacts From Closure Of Beloved Equestrian Boarding Facility In Small “Country” City

Posted in CEQA-in-reverse, Exhaustion, Land Use, Litigation, Remedies, Social and Economic Impacts, Standard of Review, Standing, Uncategorized

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.

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Justice Scalia’s Enduring CEQA and Land Use Law Legacy

Posted in CEQA Guidelines, CEQA-in-reverse, Exactions, Exhaustion, Land Use, Legislation, Mitigation, Police Power, Standard of Review, Standing, Uncategorized

With the February 13 passing of U.S. Supreme Court Associate Justice Antonin Scalia, American jurisprudence lost an intellectual giant. But Justice Scalia will not be forgotten; the legacy of his life’s work lives on.

While much has been and will be written about his landmark opinions and the originalist and textualist methods of constitutional and statutory interpretation he brought to bear in them, Justice Scalia’s significant legal contributions to CEQA, land use and environmental law merit special recognition.

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Motion to Amend CEQA Action Judgments to Make Additional Judgment Debtor Liable For Million Dollar Fee Award Not Barred By Plaintiffs’ Unreasonable Four-Year Delay Or Laches Absent New Party’s Showing Of Prejudice, Holds Fourth District

Posted in Fees and Costs, Litigation, Remedies, Statute of Limitations

In a published opinion filed January 26, 2016, the Court of Appeal for the Fourth Appellate District (Division 2) reversed a trial court’s order denying CEQA plaintiffs’ motion to amend judgments entered four (4) years earlier to add a previously unnamed corporate entity so that it would be liable on award of over $1 million in attorneys’ fees entered under CCP § 1021.5. Highland Springs Conference And Training Center v. City of Banning (SCC Acquisitions, Inc., et al., Real Parties in Interest) (4th Dist., Div. 2, 2016) 244 Cal.App.4th 267.

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OPR Releases Revised Proposed CEQA Guidelines Amendment To Implement SB 743 Traffic Analysis Mandates

Posted in CEQA Guidelines, Climate Change/GHG, Cumulative Effects, Land Use, Legislation, Mitigation, Reform

The evolution of CEQA traffic impacts analysis from level of service (LOS) methodology to a vehicle miles traveled (VMT) analysis continues apace. The latest step in this revolutionary paradigm shift was the January 20, 2016 release by the Governor’s Office of Planning and Research (OPR) of its “Revised Proposal on Updates to the CEQA Guidelines on Evaluating Transportation Impacts in CEQA” (the “Revised Proposal”).

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When CEQA Violations Are An Afterthought: Fourth District Upholds Trial Court’s Independent Judgment Determination That City Of Anaheim Is Equitably Estopped To Unilaterally Modify Resort Hotel CUP Conditions

Posted in Land Use, Litigation, Mitigation, Police Power, Remedies, Standard of Review, Uncategorized

CEQA and land use law in California go together like a hand in a glove. Due to CEQA’s broad scope and exacting substantive and procedural requirements, it is relatively easy to plead a cause of action for CEQA violations in most instances where land use approvals or entitlements for a development project are challenged.  CEQA claims thus play a prominent, and often leading, role as petitioners’ litigation “weapon of choice” in most such land use disputes.

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CDFA Program EIR Violates CEQA By Failing To Analyze Invasive Moth Control Program As Alternative To Eradication, Holds Third District

Posted in Alternatives, Cumulative Effects, Litigation, Recirculation, Remedies, Standard of Review, Subsequent Review

In a lengthy opinion filed December 2, 2015, and belatedly ordered published on January 4, 2016, the Third District Court of Appeal invalidated the California Department of Food and Agriculture’s (CDFA) programmatic EIR for a seven-year program to eradicate an invasive pest – an Australian native insect known as the light brown apple moth (LBAM) – that threatens California’s native plants and agricultural crops. North Coast Rivers Alliance, et al. v. A.G. Kawamura/Our Children’s Earth Foundation, et al. v. California Department of Food and Agriculture (2015) 243 Cal.App.4th 647. It reversed the trial court’s judgments denying appellants’ mandate petitions and remanded with directions to grant them.

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