November 2013

In a decision recently ordered published, the Fourth District Court of Appeal added to the growing progeny of Save Tara, and affirmed the trial court’s judgment denying the City of Irvine’s writ petition seeking to compel Orange County to prepare an EIR for its submittal of an application for state funding to expand a jail facility.  City of Irvine v. County of Orange (4th Dist., Div. 3, 2013) 221 Cal.App.4th 846.  County’s funding application under the State’s AB 900 process did not commit it to a definite course of action regarding the jail expansion, however, and was merely a preliminary funding step; it was therefore not the “approval” of a project requiring CEQA review.
Continue Reading All About “Commitment”: CEQA Review is Not Triggered By Orange County’s AB 900 Application For State Funding To Expand Existing Jail Facility, Which Was Not A Project Approval

The EIR has long been the judicially-proclaimed “heart of CEQA” because it represents the culmination of the statute’s environmentally-protective purposes and objectives.   Yet the legal “expiration date” for the document embodying CEQA’s highest purposes is often subject to debate and confusion.  A public agency’s reliance on an “old” EIR is inherently fraught with the risk of legal challenge by project opponents.  But, as a recent First District decision reminds, such reliance may be perfectly proper under CEQA’s applicable rules, which focus in this context on not “reinventing the wheel” – the “wheel” being the EIR – without very good reason to do so; they also defer to the lead agency’s reasoned decision in this regard.
Continue Reading First District Rejects CEQA Challenge To City of Napa’s Reliance On Prior General Plan EIR For Housing Element Update Project

In a recent decision extensively analyzing and applying CEQA’s rules on alternatives analysis, recirculation, and a petitioner’s burden to show agency error, the Third District Court of Appeal affirmed the Nevada County Superior Court’s judgment denying a writ petition challenging a commercial real estate project.  South County Citizens for Smart Growth v. County of Nevada (3d Dist., 10/8/13) 221 Cal.App.4th 316.

Plaintiff “Smart Growth” challenged County’s approval of the 20-acre Higgins Marketplace Project being developed by Katz Kirkpatrick Properties (KKP) in southwestern Nevada County.  The Draft EIR (DEIR) analyzed subdivision of the site into 10 parcels, with approximately 80,000 square feet of retail uses, two fast food restaurants, 482 parking stalls, reservation of 5 acres for future development of 42,000 square feet of light industrial and office uses, and preservation of about 3.26 acres of wetlands with a 25-foot buffer.  It identified three significant and unavoidable impacts – two traffic impacts and one cumulative air quality impact – and found all other impacts would be less than significant with mitigation.  It analyzed four (4) project alternatives, including the CEQA-mandated no project alternative; a restricted turning access alternative to try to avoid SR 49 impacts; a business park alternative under current general plan designations (designed to reduce traffic and noise); and a redesign/reduced density alternative which would eliminate 6,500 feet of commercial development, relocate the fast food restaurants, and provide greater buffers to reduce biological, noise, visual and traffic impacts.Continue Reading Third District Holds CEQA Does Not Require Recirculation Based On Staff-Recommended Alternative Raised After Preparation of Final EIR

The Sixth District Court of Appeal, in a published decision filed September 30, 2013, reversed a grant of summary judgment in favor of defendant City of San Jose in an action challenging its “Envision San Jose” comprehensive general plan update.  California Clean Energy Committee v. City of San Jose (6th Dist. 2013) 220 Cal.App.4th 1325.  The trial court found plaintiff CCEC failed to exhaust administrative remedies (as required to file a mandamus action challenging the general plan EIR) because it did not file an administrative appeal of the City planning commission’s certification of the EIR (as required by the City’s Municipal Code).  The Court of Appeal held this was in error because under CEQA’s delegation rules the planning commission couldn’t validly make a final EIR certification decision that could be appealed to the Council.
Continue Reading CEQA Standing and Exhaustion Rules Applied In Action Challenging City of San Jose’s General Plan Update

My October 31 presentation with David Ivester for the Bay Planning Coalition on recent CEQA developments brought home the fact that while there has been only partial and incremental legislative reform (in the form of SB 743), the appellate Courts have remained very active, publishing roughly 30 decisions over the past year.  I concur with David that legislative reform in 2014 (an election year) is unlikely, so it appears we will have to continue to look to the judiciary as the principal agent for change – for better or for worse.  David’s opening anecdote about his conversation with an intelligent, non-lawyer friend underscoring the need for CEQA reform was compelling –  something just seems wrong if, after a legion of environmental professionals (including agency staff, planners, environmental consultants, and legal counsel) has thoroughly vetted a development project and its environmental review, it still stands only a 50% chance of prevailing if challenged in Court.
Continue Reading “The Year in CEQA: A Look Back”