Photo of Arthur F. Coon

Arthur F. Coon is the Co-Chair of Miller Starr Regalia’s Land Use Practice Group and Chair of its Appellate Practice Group. Art has distinguished himself over a nearly 30-year career as a top CEQA and land use law litigator at the trial and appellate levels of both federal and state courts, including an appearance as counsel of record before the U.S. Supreme Court. His areas of expertise include land use, environmental law, the law of public agencies, extraordinary writs, and the California Environmental Quality Act (CEQA).

When a lead agency finds a project approval to be categorically exempt from CEQA, this determination at the initial step of CEQA’s multi-tiered process necessarily includes an implied finding that no exceptions to the categorical exemption are applicable.  A party challenging an agency’s categorical exemption determination on the basis that the “unusual circumstances” exception applies generally has the burden to show both (1) unusual circumstances (i.e., the project has some feature distinguishing it from others in the exempt class, such as size or location), and (2) “a reasonable possibility of a significant effect [on the environment] due to [those] unusual circumstance[s].”  (Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1105, 1115.)

But how does a court review an “unusual circumstances” challenge to a categorical exemption where the agency has made no express findings on these elements and must thus rely on implied findings to uphold its determination?  In a published opinion filed September 18, 2017, the First District Court of Appeal answered this important question in the course of affirming a judgment denying a writ petition that challenged the City of South San Francisco’s (City) conditional-use permit (CUP) for conversion of an office building to a Planned Parenthood medical clinic.  Respect Life South San Francisco v. City of South San Francisco (Planned Parenthood Mar Monte, Inc., Real Party In Interest) (1st Dist., Div. 1, 2017) ___ Cal.App.5th ___.  While the City’s categorical exemption in this case was upheld based on an implied finding, the opinion’s most important takeaway for local agencies (and project proponents) is that reliance on such a finding presents far more litigation risk than if appropriate express findings are made.

Continue Reading First District Upholds CEQA Categorical Exemption for Approval of Planned Parenthood Clinic in City of South San Francisco, Clarifies Implied Finding of No Exceptions is Analyzed for Record Support on Narrowest Possible Ground

AB 890 (Medina – D), recently sent to Governor Brown for action by October 15, seeks to amend Government Code § 65867.5 and to add §§ 65363 and 65850.10 to prevent development agreements and certain types of land use planning and zoning legislation from being enacted by local voter-sponsored land use initiatives.  The bill would substantially abridge the local electorate’s constitutionally guaranteed and reserved initiative power by purporting to exclusively “delegate” specified exercises of legislative authority to local governing bodies – city councils and county boards of supervisors – and thus concomitantly eliminating local voters’ long-held and until now unassailable rights to directly legislate in such areas pursuant to California Constitution, Article II, Section 11, and the procedures of the Elections Code.

The bill’s stated purpose is to ensure the enumerated types of local development proposals are subjected to CEQA review – and, implicitly, to provide expanded opportunities for litigation under a flawed CEQA statute the legislature continues to refuse to meaningfully reform – by annulling the constitutional right of local voters to directly legislate in these areas, a presently enjoyed and “jealously guarded” right the exercise of which is not currently subject to CEQA review.  Long story short:  AB 890 is a bad bill that proposes a cure far worse than the perceived disease.  As will be apparent from the discussion of its provisions below, the proposed law is deeply flawed, of doubtful constitutionality, and the opposite of CEQA reform.

Continue Reading The Opposite of CEQA Reform: Legally Flawed AB 890 Would Expand Opportunities for CEQA Litigation Abuse While Abridging Constitutional Local Initiative Rights

In an opinion originally filed on July 31, and belatedly ordered partially published on August 24, 2017, the Sixth District Court of Appeal affirmed the trial court’s judgment denying a writ petition brought by a citizens group (Highway 68) on CEQA and Planning and Zoning Law grounds, and upheld the Monterey County Board of Supervisors’ 2012 approval of a shopping center project.  The Highway 68 Coalition v. County of Monterey, et al. (Omni Resources LLC, Real Party in Interest) (6th Dist. 2017)  _____ Cal.App.5th _____ .

In relevant (published) part, the Court upheld the trial court’s interlocutory remand to the County’s Board of Supervisors to clarify or make further findings required to demonstrate the project’s consistency with certain provisions of County’s General Plan requiring express, evidence-supported findings that the project has “a long-term sustainable water supply”; in so doing it rejected arguments that this procedure violated CEQA’s remedies statute (Public Resources Code, § 21168.9), which generally prescribes writ relief for CEQA violations.  (The much lengthier, unpublished portion of the Court’s opinion, which will not be addressed in detail in this post, rejected Highway 68’s remaining non-general plan CEQA arguments alleging:  violations of due process in the remand proceedings; CEQA violations in the EIR’s analysis of the Project’s water rights, and water balance, demand and recharge scheme, groundwater/soil contamination, and traffic analysis methodology; and violation of CEQA’s prohibition on “segmentation” or “piecemealing” of environmental review.)

Continue Reading Sixth District Holds Project’s Consistency with General Plan Is Not a CEQA Issue, Upholds Trial Court’s Interlocutory Remand for County Board to Clarify Consistency Findings, and Affirms Judgment Denying Writ Petition Alleging General Plan and CEQA Challenges to Shopping Center Project

In a published decision filed August 8, 2017, the Fourth District Court of Appeal affirmed the trial Court’s judgment dismissing a CEQA action brought by two individuals (“Appellants”) against the Mt. San Jacinto Community College District (“District”).  Bridges v. Mt. San Jacinto Community College District (Riverside County Regional Park & Open- Space District, Real Party in Interest) (4th Dist. 2017) 14 Cal.App.5th 104.  Appellants challenged the District’s entry into a purchase agreement to buy from a regional park district a plot of vacant land for potential future use as a new campus, alleging this action violated CEQA because the District had not yet prepared an EIR for the potential new campus project.  (The District was in the process of preparing an EIR, during the pendency of other litigation over an earlier option agreement on the property, but it “paused” that process due to the other litigation while determining it would complete the EIR before entering into escrow on the property.)  Appellants also claimed the District violated CEQA by failing to adopt local CEQA implementing guidelines.

The Court of Appeal held Appellants failed to exhaust their administrative remedies prior to filing suit or to demonstrate any excuse for not doing so; alternatively, it held that their claims lacked substantive merit.

Continue Reading Fourth District Rejects CEQA Challenge to College District’s Entry into Land Acquisition Agreement Prior to Preparing EIR Due to Plaintiffs’ Failure to Exhaust and Based on Merits

On July 7, 2017, the California Supreme Court filed its 69-page opinion, written by Chief Justice Cantil-Sakauye and joined by five other justices, in Friends of the Eel River v. North Coast Railroad Authority, et al. (2017) __ Cal.5th ___.  The Court held that the Interstate Commerce Commission Termination Act of 1995 (“ICCTA”; 49 U.S.C., § 10101 et seq.) does not exempt the application of CEQA to a railroad project undertaken by a state public entity, defendant North Coast Railroad Authority (NCRA), on a rail line also owned by that entity.  The Court acknowledged that ICCTA’s federal regulatory scheme would preempt a state’s imposition of environmental regulation such as CEQA on a privately owned railroad.  That is because settled federal law holds ICCTA preempts a state’s imposition of “environmental preclearance requirements” that have the effect of preventing or delaying the operation of a privately owned railroad.  But the Court also held that, as applied to govern the conduct of subdivisions of the sovereign state, the CEQA process constitutes an act of “self-governance” and not preempted “regulation” within the meaning of ICCTA.

Continue Reading California Supreme Court Holds CEQA Applies to State Entity’s Railroad Project on State-Owned Rail Line as Act of “Self-Governance”, Not “Regulation” That Would Be Preempted by Federal Law

On July 26, 2017, the California Supreme Court issued its order denying the losing appellants’ (Sierra Club and Center for Biological Diversity) request for depublication of the opinion in Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11, and also declined to review the case on its own motion, bringing the litigation to a final conclusion.  The Court’s docket entry reflects that Justice Kruger was absent and did not participate in the matter.

My post analyzing the Court of Appeal’s opinion, which remains a published precedent as a result of the Supreme Court’s action, can be found here, and my post on the depublication request and related letter briefing can be found here.

Continue Reading Supreme Court Denies Depublication Request, Declines To Review CEQA Decision Addressing Discretionary/Ministerial Project Approval Distinction

“You may say I’m a dreamer.”  – John Lennon, “Imagine

“Son she said / Have I got a little story for you…”

Pearl Jam, “Alive

CEQA, our state’s landmark environmental protection act, is a venerable law with an illustrious history now spanning over 45 years.  But it’s also being abused every day, distorted for non-environmental ends not worthy of it – and our legislature refuses to sit up and take note.  It’s as if Lady Justice had grown warts, been disrobed and had her scales smashed by vandals – yet those who could help, sit idly by and don’t seem to care.

CEQA reform has been a hot topic, on and off, over the years.  Governor Brown has called it “the Lord’s work.”  Calls for it wax and wane with the economy and perceived need to get development projects approved and built.  While many CEQA practitioners, politicians, and members of the regulated community have acknowledged the need for reform, many others have denied it; some insist CEQA works “just fine” as it is, or even advocate further expansion of its reach.  Proposals for meaningful legislative reform have been largely unsuccessful and have been criticized by opponents as proposals to “weaken” the state’s “signature” environmental law.  It’s often said that the first step to recovery is acknowledging a problem exists.  It’s difficult to build consensus for CEQA reform when there is not even consensus about the existence of CEQA abuses requiring reform.

Continue Reading Standing Against Environmental Injustice: Some Thoughts On Facing The Need For CEQA Litigation Reform

On July 13, 2017, the California Supreme Court rendered a 6-1 decision holding that the San Diego Association of Governments’ (SANDAG) 2011 EIR for its Regional Transportation Plan/Sustainable Communities Strategy (RTP/SCS) issued pursuant to SB 375 did not violate CEQA “by declining to explicitly engage in an analysis of the consistency of projected 2050 greenhouse gas emissions with the goals in [a 2005] executive order [the “2005 EO”].” (Cleveland National Forest Foundation, et al v. San Diego Association of Governments (2017) ___ Cal. 5th __, Supreme Court Case No. 5223603.) This conclusion is not surprising, and it is undoubtedly correct. But it is disappointing that the majority’s opinion lacks significant practical or legal guidance for conducting CEQA-compliant GHG analysis for long term regional plans.

Maybe I expect too much. Maybe the nature of the opinion is just a result of the narrowly-framed issue on which the Court chose to grant review. Maybe the interrelationship between CEQA and SB 375 is so complex that hope for greater clarity and simplicity in this area is unrealistic. Perhaps, by its very nature, CEQA is inherently ill-suited to “analyzing” the global-scale environmental impacts of GHG emissions on a project-by-project basis. Or perhaps the case’s narrow holding flows from the strong flavor of mootness that permeates it. In this last vein, it seems somewhat odd for our Supreme Court to decide the legal validity of one discrete aspect of SANDAG’s 2011 EIR despite the facts that (1) the 2011 RTP/SCS which that EIR analyzed has now long been superseded by an updated 2015 RTP/SCS (“San Diego Forward: The Regional Plan”); (2) SANDAG did conduct a 2005 EO consistency analysis in connection with the updated plan; and (3) no one has challenged the updated plan or its EIR.

Continue Reading Supreme Disappointment: High Court’s Narrow Opinion In SANDAG RTP/SCS EIR Case Offers Little Guidance On CEQA GHG Analysis

On June 16, 2017 – without seeking either rehearing in the First District Court of Appeal or review by the Supreme Court – losing appellants Sierra Club and Center for Biological Diversity filed a letter asking the Supreme Court to depublish the First District’s (Division 1) recent opinion in Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11 (“Sierra Club”).  The Supreme Court on the same day extended its otherwise soon-to-expire time to order review of the case on its own motion to August 21, 2017.

In a well-researched and well-reasoned opinion resulting from extensive briefing (including supplemental briefing) from all parties, Sierra Club affirmed the trial court’s denial of appellants’ writ petition challenging the Sonoma County Agricultural Commissioner’s issuance of a 54-acre vineyard development permit, as a ministerial approval without CEQA review, under the detailed standards and controls of the County’s vineyard development and erosion control (aka “VESCO”) ordinance.  My blog post analyzing this significant case (in which I represent real party Ohlson Ranch) can be found here.

Continue Reading Sierra Club/CBD Seek Depublication of CEQA Decision Addressing Discretionary/Ministerial Project Approval Distinction

On May 2, 2017, the Fifth District Court of Appeal vacated its earlier order and writ, and on May 5 it granted Respondents’ request for rehearing in the CEQA litigation entitled Poet, LLC v. State Air Resources Board, et al. (“POET II”) (5th Dist. 2017) 12 Cal.App.5th 52, Case No. F073340.  Upon granting various requests for judicial notice of the parties, the Court resubmitted the cause without further briefing on May 24, and issued its modified published opinion (with no change in the result) on May 30, 2017.

Continue Reading Fifth District Grants Rehearing, Vacates Prior Published Opinion, and Issues Slightly Modified Published Opinion in POET II CEQA Litigation