On April 21, 2017, the First District Court of Appeal filed a 22-page published opinion providing significant guidance and analysis concerning the critical, but sometimes elusive, distinction between “discretionary” project approvals that are subject to CEQA and “ministerial” ones that are exempt from it.  Sierra Club, et al. v. County of Sonoma (Ronald and Ernest Ohlson, dba Ohlson Ranch, Real Parties in Interest) (1st Dist., Div. 1, 2017) ___ Cal.App.5th  ___. (As a matter of disclosure, I represent the real parties, the Ohlsons, in this action.)
Continue Reading First District Holds Sonoma County Vineyard Development (VESCO) Permit was Ministerial Approval Exempt from CEQA

Like the fable of the blind men and the elephant, CEQA’s prohibition on “piecemealing” of environmental review is animated by a basic recognition that the “whole” of an action under review is greater than its individual parts viewed separately.  (The same important insight also underlies CEQA’s requirement to analyze a project’s cumulative impacts.)  But CEQA’s expansive and rather amorphous definition of what constitutes a “project” ensures that its piecemealing rule shares another similarity with the famous fable:  what conduct constitutes improper piecemealing often appears to be in the “eye of the beholder” and individual perceptions can differ greatly based on more-or-less subjective factors.  Appellate courts have long wrestled with application of the relevant legal principles, which essentially attempt to prohibit a lead agency’s “chopping up” of a project into smaller components so that it can turn a “blind eye” to reasonably foreseeable environmental impacts of the “whole” action.

On March 30, 2017, the Sixth District Court of Appeal issued a published opinion that rejected piecemealing and other CEQA challenges raised by the plaintiff/appellant group Aptos Council to several zoning ordinance amendments separately adopted and reviewed for CEQA purposes by the County of Santa Cruz; the enactments addressed discrete topics, but were all initiated by County as part of its general “regulatory reform” effort to “modernize, clarify, streamline and/or provide [clear] standards” for its land use regulations.  Aptos Council v. County of Santa Cruz (2017) 10 Cal.App.5th 266.

Continue Reading Sixth District Rejects “Piecemealing” and Other CEQA Challenges to Ordinances Enacted Pursuant to Santa Cruz County’s Zoning Modernization Effort

On January 11, 2017, the California Supreme Court by unanimous order granted review in yet another CEQA case, Union of Medical Marijuana Patients, Inc. v. City of San Diego (2016) 4 Cal.App.5th 103, Supreme Court Case No. S238563.

Continue Reading Supreme Court Grants Review in Medical Marijuana Case Presenting CEQA “Project” Definition Issues

In a 29-page published opinion filed October 14, 2016, the Fourth District Court of Appeal dispensed some good news to municipalities desiring to reasonably regulate retail medical marijuana facilities within their jurisdictional boundaries.  In Union of Medical Marijuana Patients, Inc. v. City of San Diego (4th Dist., Div. 1, 2016) 4 Cal.App.5th 103, Case No. D068185, the Court affirmed the trial court’s judgment denying a writ petition on the basis that the City of San Diego’s ordinance regulating the establishment and location of medical marijuana consumer cooperatives was not a “project” subject to CEQA.

Continue Reading Blowing Smoke About Impacts? Fourth District Rejects Speculative CEQA Challenge to San Diego’s Medical Marijuana Consumer Cooperative Ordinance, Holds Zoning Ordinances Are Not Necessarily CEQA “Projects”

On August 17, 2016, the California Supreme Court ordered the Fourth District’s opinion in People for Proper Planning v. City of Palm Springs (2016) 247 Cal.App.4th 640 to be depublished, rendering it unciteable and of no precedential effect.  I posted two previous blog entries on the Court of Appeal’s original decision and its subsequent modificationContinue Reading Supreme Court Depublishes Quirky Fourth District CEQA/General Plan Decision

In a published opinion filed July 21, 2016, the Second District Court of Appeal affirmed the trial court’s judgment rejecting plaintiffs/residential neighbors’ (“Appellants”) CEQA challenge to the City of Redondo Beach’s (“City”) approval of 4,080 square foot car wash/coffee shop (on a 25,000 square-foot urban lot) based on CEQA Guidelines § 15303’s “Class 3” categorical exemption for development of “new, small facilities or structures [and] installation of small new equipment and facilities in small structures.”  Steven Walters, et al. v. City of Redondo Beach (Redondo Auto Spa, et al., Real Parties in Interest) (2d Dist., Div. 6, 2016) 1 Cal.App.5th 809, Case No. B258638.

Continue Reading Second District Upholds Application of CEQA’s Class 3 Categorical Exemption For New Small Structures To City’s Approval of Small Car Wash/Coffee Shop Project, Rejects Appellants’ Attempt To Invoke Unusual Circumstances Exception

In a short but significant published opinion filed July 19, 2016, the First District Court of Appeal affirmed the San Francisco County Superior Court’s judgment of dismissal following the sustaining of demurrers (without leave to amend) to a CEQA action as time-barred.  Communities for a Better Environment, et al. v. Bay Area Air Quality Management District (Kinder Morgan Material Services, LLC, et al., Real Parties In Interest) (1st Dist., Div. 1, 2016) 1 Cal.App.5th 715, Case No. A14364.  The Court of Appeal held there was no reasonable possibility that plaintiffs (CBE) could amend the mandamus petition to allege their CEQA action was timely filed by virtue of the discovery rule because that rule does not apply where one of the triggering events of CEQA’s statute of limitations has occurred.

Continue Reading Discovery Rule Does Not Postpone Accrual of CEQA Cause of Action; Events Specified In CEQA Statute of Limitations Provide Constructive Notice of Project Approval or Commencement

In an order filed June 17, 2016, the Court of Appeal for the Fourth Appellate District (Division 2) modified its opinion filed April 22, and ordered partially published May 20, 2016, in People for Proper Planning v. City of Palm Springs (2016) ___ Cal.App.4th ___, 2016 WL 1633062.  The modification, which did not affect the judgment, substituted at page 8 of the prior slip opinion a paragraph discussing the operation of categorical exemptions and the “unusual circumstances” exception thereto, and cited to the relevant standards enunciated by the Supreme Court’s decision in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1105, 1114.  It also added a footnote to page 9 stating:  “The City does not dispute that this case presents “unusual circumstances.””

Continue Reading Fourth District Modifies CEQA Categorical Exemption Opinion Involving Palm Springs General Plan Amendment Without Altering Judgment

In a brief – and somewhat odd – opinion filed April 22, and belatedly ordered partially published on May 20, 2016, the Fourth District Court of Appeal reversed a trial court judgment denying a petition for writ of mandate challenging a General Plan Amendment (GPA) adopted by the City of Palm Springs as categorically exempt from CEQA.  People for Proper Planning v. City of Palm Springs (4th Dist., Div. 2, 2016) 247 Cal.App.4th 640, Case No. E062725.  The Court held the trial court erred in upholding the City’s positions that the GPA, which eliminated minimum density requirements for all residential land use categories, was exempt from CEQA review under the Class 5 categorical exemption and because it allegedly did not change the environmental “baseline,” i.e., the City’s alleged preexisting practice of ignoring the General Plan’s minimum density provisions (and, hence, its allowable density ranges) when acting on residential development applications. In light of its CEQA ruling requiring reversal and further environmental (and necessarily General Plan consistency) analyses by the City, the Court held that it need not reach appellant PFPP’s other arguments that the GPA rendered the General Plan internally inconsistent, and violated statutory requirements that City accommodate its fair share of regional housing needs for all income levels.

Continue Reading Home(s) In The “Range”: Fourth District Overturns CEQA Exemption For City of Palm Springs’ General Plan Amendment Removing Minimum Residential Density Requirements