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)

In a detailed 66-page published opinion filed April 10, 2017, the Fifth District Court of Appeal reversed the trial court’s order discharging a writ of mandate that was issued to compel the California Air Resources Board (“CARB”) to correct CEQA violations in connection with its 2009 adoption of low carbon fuel standards (“LCFS”) regulations.  POET, LLC v. State Air Resources Board (National Resources Defense Council, Inc., Intervenor and Respondent) (2017) _____ Cal.App.5th _____, Case No. F073340  (“POET II”).  The CEQA violations resulting in the writ were discussed in the Court of Appeal’s earlier published opinion, POET, LLC. V. State Air Resources Bd. (2013) 218 Cal.App.4th 68 (“POET I”), which was summarized in my blog post here.

Continue Reading CARB Violated CEQA and Writ in LCFS Litigation, Holds Fifth District, While Leaving New 2015 Regs in Effect

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) ____ Cal.App.5th ____.

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

In a unanimous 29-page opinion authored by Associate Justice Carol Corrigan, and filed on March 30, 2017, the California Supreme Court held the City of Newport Beach’s EIR for a large mixed-use development project proposed on a 400-acre coastal zone site failed to comply with CEQA.  Banning Ranch Conservancy v. City of Newport Beach (Newport Banning Ranch LLC, et al., Real Parties in Interest) (2017) ___ Cal.5th ___.  The EIR improperly failed to identify areas of the site that might qualify as “environmentally sensitive habitat areas” (ESHA) – unique areas receiving special legal protections under the California Coastal Act – and take such areas into consideration in its analysis of project alternatives and mitigation measures.  In light of its reversal of the Court of Appeal’s judgment upholding the EIR and project approvals on CEQA grounds, the high court stated it did not need to reach plaintiff and appellant’s independent claim that the City also violated a general plan “strategy” requiring it to “[w]ork with appropriate state and federal agencies to identify wetlands and habitats to be preserved and/or restored and those on which development will be permitted.”

Continue Reading California Supreme Court Holds Banning Ranch EIR Violates CEQA by Failing to Identify and Analyze Coastal Zone Project’s Impacts on Potential Environmentally Sensitive Habitat Areas (ESHA); Declines to Reach General Plan Issues

In a 46-page opinion filed February 14 and ordered published on March 15, 2017, the Fourth District Court of Appeal rejected numerous CEQA challenges to Riverside County’s approval of an EIR for Specific Plan 380, a 200-acre master-planned, mixed-use community in the County’s French Valley region.  Residents Against Specific Plan 380 v. County of Riverside (Hanna Marital Trust, Real Party in Interest) (4th Dist., Div. 2, 2017) _____ Cal.App.5th ______.  In affirming the trial court’s judgment denying the plaintiff/appellant group’s mandate petition, the Court of Appeal found no merit in any of the group’s arguments that County failed to comply with a number of procedural, informational and substantive CEQA requirements.

Continue Reading Fourth District Affirms Judgment Rejecting Numerous CEQA Challenges to EIR and Approval Process for Large Master-Planned Riverside County Development Project

Land use litigators know that CEQA provides a potent weapon to challenge local government decisions affecting land use and development.  It is often easy to plead a CEQA claim challenging such decisions, and CEQA will normally apply to them regardless of whether they are legislative (e.g., general plan, specific plan, zoning, and development agreement enactments and amendments) or quasi-adjudicatory (e.g., conditional use permit, subdivision map approvals) in nature.  When an EIR has not been prepared to analyze the potential environmental effects of the local agency’s action, a CEQA plaintiff with standing who files suit within the law’s short limitations periods will also receive a very favorable standard of judicial review – the “fair argument” test – in the quest to invalidate the local land use action and require further environmental review.

Continue Reading Ballot Box Alternatives To CEQA And Land Use Litigation: Recent Developments In The Law Of Initiatives And Referenda

On February 15, 2017, the California Supreme Court denied numerous requests for depublication and declined to review on its own motion the decision in East Sacramento Partnership for a Livable City v. City of Sacramento (3d Dist. 2016) 5 Cal.App. 5th 281.  In relevant (and controversial) part, that decision held that the EIR for a large residential infill project violated CEQA by basing its less-than-significant traffic impact finding on the project’s compliance with an applicable traffic level of service (LOS) standard in the City’s general plan; my blog post analyzing the Court of Appeal’s published opinion in detail can be found here.

Continue Reading Supreme Court Denies Depublication Requests in CEQA Traffic LOS Impact Case

On January 17, 2017, the California Supreme Court denied the losing appellants’ petition for writ of supersedeas, stay request, and petition for review of the First District Court of Appeal’s decision in Mission Bay Alliance v. Office of Community Investment and Infrastructure, et al. (GSW Arena LLC, et al., Real Parties in Interest) (2016) 6 Cal.App.5th 160; Supreme Court Case No. S239371.  This action effectively ends the CEQA challenge to the Golden State Warriors San Francisco Arena project brought by a coalition of its opponents and removes the major legal hurdle to its construction.  Consistent with the required “fast track” CEQA review of and litigation over this Governor-certified “environmental leadership development project,” the high court’s action came relatively quickly – just a month and a half after the filing of the Court of Appeal’s decision.  My detailed post on the Court of Appeal’s published decision in the case, which now stands undisturbed as legal precedent, can be found here.

Continue Reading California Supreme Court Denies Review in Expedited CEQA Litigation over Golden State Warriors Arena Project Approval

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 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