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) 10 Cal.App.5th 764, 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.
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.
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) 2 Cal.5th 918. 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) 9 Cal.App.5th 941. 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.
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.
The Los Angeles Times reported yesterday that California Supreme Court Justice Kathryn Werdegar, 81, and currently the Court’s longest-serving member, will retire this summer, on August 31, 2017. Justice Werdegar has served as an associate justice on the high court for 23 years, and was quoted as saying “it is time for someone else to have that privilege and opportunity.”
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.
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.
New California legislation affecting the required water supply analyses that must be made for certain projects subject to CEQA (SB 1262) was signed into law by Governor Brown last fall, and is now effective as of January 1, 2017. The new law amends two existing statutes governing water supply planning for land use development projects – Government Code § 66473.7 and Water Code § 10910 – and attempts to integrate to some extent that existing law governing “written verifications” of sufficient water supply (“WVs”) and “Water Supply Assessments” (“WSAs”) with the State’s landmark Sustainable Groundwater Management Act of 2014 (“SGMA”).
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.