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) 10 Cal.App.5th 993.

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) 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.

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

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.

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

On November 7, 2016, the Third District Court of Appeal filed a published opinion mostly upholding the EIR for a 48.75-acre, 328-unit residential infill project (known as McKinley Village) against various CEQA challenges, and finding the Project to be consistent with the City of Sacramento’s general plan.  East Sacramento Partnership for a Livable City v. City of Sacramento (Encore McKinley Village, LLC, Real Party in Interest) (3d Dist. 2016) 5 Cal.App.5th 281, 2016 WL 6581170.  In a pointed reminder that a perfectly CEQA-compliant EIR for a large infill project is difficult to prepare, however, the Court found merit in a single argument of the petitioner and appellant neighborhood group, ESPLC – its argument that “the EIR ignored [certain] significant traffic impacts.”  Specifically, the EIR failed to adequately support its less-than-significant (LTS) impact conclusion concerning such impacts, in light of a substantial project-caused degradation in level of service (LOS) at affected intersections and streets that was nonetheless compliant with the General Plan’s policy that LOS F was acceptable for the area.  Accordingly, the Court of Appeal reversed the trial court’s judgment upholding the EIR, and ordered it to issue a writ directing the City to set aside its certification and correct this lone deficiency prior to considering recertification.

Continue Reading Sacramento Residential Infill Project EIR Violated CEQA By Basing Less-Than-Significant Traffic Impact Finding Solely On Compliance With General Plan Policy Allowing LOS F

On September 9, 2016, the First District Court of Appeal (Division 5) filed an “Order Modifying Opinion and Denying Rehearing [No Change In Judgment]” in California Building Industry Association v. Bay Area Air Quality Management District, Case. Nos. A135335 & A136212.  My post on the Court of Appeal’s published opinion in the case, which was filed on August 12, 2015 following remand from a landmark Supreme Court decision holding that “CEQA does not generally require an agency to consider the effects of existing environmental conditions on a proposed project’s future users or residents” (California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, 392), can be found here. 

Continue Reading First District Modifies “Reverse CEQA” Case Opinion, Denies BAAQMD’s Petition For Rehearing With No Change In Judgment

Following up on their 2015 report covering all CEQA lawsuits filed during the 2010-2012 period, Holland & Knight lawyers Jennifer Hernandez, David Friedman and Stephanie DeHerrera recently released a portion of the sequel – the 2013-2015 update – covering CEQA lawsuits targeting housing projects within the Southern California Association of Governments (SCAG) region. The document is entitled “In the Name of the Environment Update: CEQA Litigation Update For SCAG Region (2013-2015)” and can be found on Holland & Knight’s website at https://www.hklaw.com/publications/In-the-Name-of-the-Environment-Update-07-26-2016/. The accelerated release of findings for California’s most populous region – SCAG covers six counties and 191 cities – was prompted by Governor Brown’s controversial May 2016 proposal to require “by right” ministerial approvals of zoning-compliant multifamily infill projects meeting certain affordable housing and other criteria. (My post on the 2015 Holland & Knight study can be found here; my partner Bryan Wenter’s post on Governor Brown’s “by-right” proposal can be found here.)

Continue Reading Holland & Knight SCAG Update Report: CEQA Litigation Abuse Hurts Infill Housing

In a 58-page published opinion filed June 30, 2016, the First District Court of Appeal affirmed the Alameda County Superior Court’s judgment upholding the Metropolitan Transportation Commission’s (MTC) and Association of Bay Area Government’s (ABAG) EIR for and approval of “Plan Bay Area,” the agencies’ first Sustainable Communities Strategy (SCS) prepared pursuant to California’s landmark “Sustainable Communities and Climate Protection Act of 2008” (SB 375).  Bay Area Citizens v. Association of Bay Area Governments, et al (2016) 248 Cal.App.4th 966.

Continue Reading First District Rejects CEQA Challenge To “Plan Bay Area” Sustainable Communities Strategy EIR As Premised On Fundamental Misinterpretation of SB 375

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 the published part of a partially published opinion filed July 11, 2016, the Second Appellate District Court of Appeal held that Public Resources Code § 21168.9 does not authorize an appellate court to issue and supervise compliance with a writ of mandate on direct appeal, but, rather, such a matter must be remitted to the trial court with appropriate directions. Center for Biological Diversity v. Department of Fish and Wildlife (The Newhall Land and Farming Company, Real Party in Interest) (5th Dist., Div. 5, 2016) 1 Cal.App.5th 452, Case No. B245131.  The Court thus rejected the real party developer’s motion (on remand of the case from the Supreme Court) arguing that CEQA’s “general principle” of expediting litigation and specific language in its remedies statute (Pub. Resources Code, § 21168.9) authorized such action.

Continue Reading CEQA Remedies Statute Does Not Authorize Appellate Court To Issue Writ And Supervise Compliance On Direct Appeal, Holds Second District In Partially Published Decision On Remand In Newhall Ranch Case

In a March 4, 2016 published opinion, the Fourth District Court of Appeal reversed the trial court’s judgment requiring an EIR for a small 12-home rural subdivision project based on the “psychological and social” impacts of the proponent’s related closure of a public horse boarding facility (the “Stock Farm”) which he had operated pursuant to a CUP for 20 years on the 11.6-acre property.  Preserve Poway v. City of Poway (Harry A. Rogers, et al., Real Parties in Interest) (2016) 245 Cal.App.4th 560, 2016 WL 891405.  In addition to its primary holding that psychological, social and economic impacts are not cognizable under CEQA, the Court rendered a few other interesting rulings, including its application of the Supreme Court’s recent “CEQA-in-reverse” decision (California Building Industry Ass. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369 (“CBIA”)) in holding that asserted impacts of an existing equestrian events facility (located across the street from the project) on future project residents were also beyond CEQA’s scope.

Continue Reading Horse Of A Different Color: CEQA Does Not Require EIR Due To Psychological And Social Impacts From Closure Of Beloved Equestrian Boarding Facility In Small “Country” City