In a published opinion filed April 13, 2017, the Court of Appeal for the Second Appellate District, Division 5, held that Code of Civil Procedure (“CCP”) § 473(b)’s provisions allowing mandatory relief upon an attorney’s sworn affidavit of mistake do not extend beyond the “dismissal[s]” and “default judgment[s]” referenced in the statute’s plain language.  Specifically, the Court held they did not extend to a judgment entered in favor of a defendant in a CEQA action because the plaintiff’s attorney failed to lodge the certified administrative record and therefore failed to meet plaintiff’s burden of proof.  The Urban Wildlands Group, Inc. v. City of Los Angeles, et al. (2d Dist., Div. 5, 2017) _____ Cal.App.5th _____.

Continue Reading Second District Holds Adverse Judgment in CEQA Action Resulting from Plaintiff Attorney’s Failure to Lodge Administrative Record is Not “Dismissal” or “Default Judgment” Subject to Mandatory Relief Provisions of CCP Section 473(b)

On December 14, 2016, the California Supreme Court denied review and ordered depublished the Sixth District Court of Appeal’s opinion in Bay Area Clean Environment, Inc. v. Santa Clara County, which was previously filed on August 31, 2016 and published at 2 Cal.App.5th 1197.  (See, Supreme Court’s Orders of 12/14 and 12/21/16 in Case No. S237709.)  Accordingly, the result in the case remains the same and is final and binding on the parties, but the Court of Appeal’s opinion is no longer published or citable as precedent in other cases.

Continue Reading Another One Bites the Dust: Supreme Court Denies Review and Depublishes Sixth District’s SMARA/CEQA Opinion Upholding Permanente Quarry Reclamation Plan Amendment and Related EIR

In an opinion filed November 29, and belatedly ordered published on December 22, 2016, the First District Court of Appeal affirmed the trial court’s denial of a writ petition challenging on CEQA grounds the San Francisco Municipal Transportation Agency’s (Muni) approval of a light rail construction contract.  The Committee For Re-evaluation of the T-Line Loop, et al v. San Francisco Municipal Transportation Agency, et al (Mitchell Engineering, Real Party in Interest) (1st Dist., Div. 2, 2016) __ Cal.App.5th __, 2016 WL ___________.  The contract was to install the final 900 feet of light rail line needed to complete a partially constructed “Loop” around a City block in the Dogpatch neighborhood, so that trains on the T-Third light rail line will be able to turn around and lay over to meet service needs for special events and peak travel periods.  In approving the contract, Muni relied on the 1998 EIS/EIR (FEIR) certified for the two-phase Third Street Light Rail Project to connect southeastern San Francisco by light rail to the rest of the City; it also relied on SF Planning Department statements in 2012 and 2014 that the FEIR analyzed the Loop and that no further CEQA analysis was needed because there had been no substantial changes in the project or the area.

Continue Reading Completing the Loop Without Reinventing the Wheel: First District Holds 1998 EIR Adequate Without Further CEQA Review to Analyze Impacts of SF Muni’s Delayed Completion of Dogpatch Area Light Rail Line Loop

It’s always nice not to lose a hard-won prevailing party cost award due to a court’s imprecise use of party designations – which can get confusing where there are multiple appeals at issue.  On October 4, 2016, the Fifth Appellate District Court of Appeal issued a two-page Order entitled “Order Modifying Opinion and Denying Rehearing [Includes Change In Judgment]” in the recently decided consolidated appeals in the Citizens for Ceres v. City of Ceres litigation.  The minor change made in the last sentence of the opinion’s disposition clarified that: (1) Respondents (City of Ceres and Real Party Wal-Mart Stores, Inc., et al.) were awarded costs as prevailing parties in the merits appeal, which affirmed the trial court’s judgment denying the writ petition challenging the EIR, statement of overriding considerations, and approval of Wal-Mart’s controversial Ceres project; and (2) Appellants (Wal-Mart, et al.) were awarded costs as prevailing parties in the separate costs appeal, which resulted in the published portion of the opinion reversing the trial court’s order taxing costs of $44,889.71 claimed by Wal-Mart for amounts it had to reimburse the City for administrative record preparation.  My post on the Court’s partially published September 12, 2016 opinion in the case can be found here.

Continue Reading Fifth District Denies Rehearing, Corrects Published Opinion And Judgment In Consolidated City of Ceres Appeals To Reflect Wal-Mart’s Cost Award As Prevailing Party On Costs Appeal

In the published portion of an opinion filed September 12, 2016, the Fifth District Court of Appeal reversed the trial court’s order taxing costs in the amount of $44,889.71 which were claimed by prevailing real party in interest Wal-Mart in connection with preparation of the administrative record.  The costs were incurred by respondent and lead agency City of Ceres when it directed its outside counsel to prepare the record in a CEQA action challenging a Wal‑Mart Supercenter project, and were reimbursed by real party Wal-Mart pursuant to an agreement with the City that required the project applicant to reimburse it for all expenses arising from legal challenges to the project.  Citizens For Ceres v. City of Ceres (Wal-Mart Stores, Inc., et al., Real Parties in Interest) (2016) ___ Cal.App.5th ___, 2016 WL 4733253.

Continue Reading Neither CEQA Administrative Record Preparation Statute nor Case Law Precludes Award of Costs to Prevailing Real Party who Reimburses Lead Agency Its Costs of Record Preparation

In a published opinion filed August 31, 2016, the Sixth Appellate District Court of Appeal rejected claims under CEQA and the Surface Mining and Reclamation Act (“SMARA”; Pub. Resources Code, §§ 2700, et seq.), and affirmed the denial of a writ petition challenging Santa Clara County’s 2012 EIR and related approval of a reclamation plan amendment for the Permanente Quarry. Bay Area Clean Environment, Inc. v. Santa Clara County (Lehigh Southwest Cement Company, et al., Real Parties in Interest) (2016) ___ Cal.App.5th ___, 2016 WL 9540085.  The plan amendment governs (over a 20-year period) the closing and reclaiming of the Quarry, which has conducted limestone and aggregate surface mining operations since 1903 in the unincorporated County.  The Quarry has expanded from about 1,300 acres when the Permanente Corporation purchased it in 1939 to its current 3,510 acres.  It includes a central rock/limestone mining pit, a rock crushing area, and administrative offices all located within the upper portion of the Permanente Creek watershed; the creek flows east and borders the Quarry pit’s south side before leaving the Quarry property and running to the bay.

Continue Reading Sixth District Rejects SMARA And CEQA Challenges To Permanente Quarry Reclamation Plan Amendment And Related EIR

About one year after being placed in the California Legislature’s “Inactive File,” SB 122 (concerning concurrent preparation of the CEQA administrative record and OPR electronic database) is back “off the shelf.”  The bill passed in the State Assembly yesterday, and will next be considered by the Senate for concurrence in the Assembly’s amendments.  It must be passed by both houses between now and the end of the month (if it is to be sent to Governor Brown for signature).

As originally proposed in early 2015, SB 122 contained only one detailed statutory provision – the addition of Public Resources Code § 21167.6.2 – which would create a detailed new alternative method for expedited preparation of the record of proceedings (i.e., the “administrative record”) in CEQA cases, at the election and expense of the applicant and with the consent of the public agency.  It also contained two “placeholder” sections declaring the Legislature’s intent to establish an electronic database clearinghouse of CEQA documents maintained by the State Office of Planning and Research (OPR) and to establish a public review period for Final EIRs.

Continue Reading Statutory CEQA Reform Proposal (SB 122) Reemerges With Optional Expedited Record Preparation Provisions Unchanged; Fleshes Out OPR Electronic Database Placeholder; And Drops Controversial Effort To Provide Public Review Period for Final EIRs

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) 242 Cal.App.4th 202, filed 11/18/15.

Continue Reading 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

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) 241 Cal.App.4th 94. 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.

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

In a published opinion filed September 2, 2015, the Fourth District Court of Appeal (Division 2) reversed the trial court’s judgment denying a writ petition challenging a school district’s determination that its closure of two schools and related student transfers were exempt from CEQA. Save Our Schools v. Barstow Unified School District Board of Education (2015) 240 Cal.App.4th 128. In directing on remand the issuance of a writ that would, at a minimum, mandate that the District void its exemption determination and reconsider the matter, the Court also held that the District could in further proceedings consider additional evidence not before it at the time it made its initial exemption decision, and that any challengers would have the opportunity to present additional evidence as well. Continue Reading Back To The Chalk Board: School District’s Math Fails To Justify CEQA Categorical Exemption For School Closures