In a published opinion filed October 26, 2022, the Second District Court of Appeal (Div. 6) appears to have significantly expanded the reach of both the Brown Act and the procedural requirements of CEQA in holding, on an issue of first impression, that a public agency must list its staff’s determination that a project is exempt from CEQA as an item of business on the agenda for the meeting at which it considers the project approval. G.I. Industries v. City of Thousand Oaks, et al (Arakelian Enterprises, Inc., Real Party In Interest) (2022) __ Cal.App.5th __. The opinion thus extends San Joaquin Raptor Rescue Center v. County of Merced (2013) 216 Cal.App.4th 1167 (“San Joaquin Raptor”), which held that a public agency’s decision to adopt a CEQA document, such as an EIR or negative declaration, must be described as a distinct item of business under the Brown Act when it is to be considered at a public hearing, to the distinct context of CEQA-exempt projects.
Continue Reading Second District Holds Brown Act Requires Lead Agency To List CEQA Exemption As Item of Business On Agenda For Public Meeting When Project Already Found Exempt By Staff Is Considered For Approval
Remedies
First District Holds LA’s Water Allocations To Agricultural Lessees Were Authorized Under Existing Leases And Did Not Constitute Or Implement A Separate “Project” Subject to CEQA Review
The First District Court of Appeal filed on June 30, and later ordered published on July 26, 2022, its opinion in County of Mono v. City of Los Angeles (1st Dist. No. A162590) 81 Cal.App.5th 657. The case involves another round in the long-running controversies surrounding Los Angeles’s efforts to secure water for its populace. As the City now owns substantial acreage in the Sierra Nevada from which it takes much of its water, it serves both as landlord and water user in that region. The overlap of those two roles gave rise to the County of Mono case, in which the County sought to use CEQA litigation as leverage over the City’s water allocations to agricultural users who lease property from the City. The case holds that the City’s water allocations to the City’s agricultural lessees were authorized under its existing 2010 leases and thus did not constitute a new project subject to CEQA review before they could be lawfully implemented. The case provides guidance to practitioners on when and how CEQA applies to public contracts, and also regarding the appropriate contents of the administrative record in CEQA litigation challenging staff level actions implementing existing leases. Entitlement and litigation attorneys should accordingly both find it a useful case to review.
Continue Reading First District Holds LA’s Water Allocations To Agricultural Lessees Were Authorized Under Existing Leases And Did Not Constitute Or Implement A Separate “Project” Subject to CEQA Review
Third District Holds CEQA Does Not Authorize “Remedy” of “Limited EIR” To Augment Deficient MND; Rather, Full EIR Must Be Prepared Where Substantial Evidence Supports Fair Argument That Any Aspect Of Project May Have Significant Environmental Effect
In a partially published opinion filed on November 3, 2021, involving the CEQA review for a bed and breakfast/commercial event project proposed on property within a Yolo County agricultural zone, the Third District Court of Appeal (in a unanimous opinion authored by Justice Robie) reaffirmed the basic CEQA principle that a “full EIR” must be prepared whenever a project may have any significant environmental effect; it thus reversed the trial court’s judgment that had allowed a deficient revised Mitigated Negative Declaration (MND) and its mitigation measures to remain intact while ordering Yolo County to also prepare an EIR limited to addressing only the project’s impacts on three species of concern (tricolored blackbird, valley elderberry longhorn beetle, and golden eagle). The Court of Appeal reversed and remanded with instructions to issue a peremptory writ directing the County to set aside its MND approval and to prepare a full EIR instead. Farmland Protection Alliance v. County of Yolo (2021) 71 Cal.App.5th 300. (In the unpublished portion of its opinion, which won’t be further discussed in this post, the Court of Appeal held the trial court was correct in finding that substantial evidence supported a fair argument that the project may have a significant impact on the beetle, thus requiring an EIR, and also concluded the trial court did not err in upholding the County’s determinations that the project was consistent with the Williamson Act and County’s zoning code.)
Continue Reading Third District Holds CEQA Does Not Authorize “Remedy” of “Limited EIR” To Augment Deficient MND; Rather, Full EIR Must Be Prepared Where Substantial Evidence Supports Fair Argument That Any Aspect Of Project May Have Significant Environmental Effect
A Teaching Moment? First District Affirms CEQA Action Demurrer Order Finding Late-Joined Developers of UC Berkeley Campus Project Were Necessary, But Not Indispensable, Real Parties In Interest
In a published opinion filed October 21, 2021, the First District Court of Appeal affirmed the trial court’s order finding the real party developers of a UC Berkeley campus development project – undertaken for the University’s benefit, and in which it had a strong vested interest – were necessary parties, but were not indispensable parties to a CEQA action challenging the project EIR under the factors of the Code of Civil Procedure (“CCP”) § 389(b). While the action was thus properly dismissed as against those real parties upon their demurrers due to plaintiff’s failure to join them within CEQA’s 30-day limitations period, it was not required to be dismissed in its entirety and could continue to final adjudication among the remaining parties. Save Berkeley’s Neighborhoods v. The Regents of the University of California (Collegiate Housing Foundation, American Campus Communities, et al, Real Parties in Interest) (2021) 70 Cal.App.5th 705.
Continue Reading A Teaching Moment? First District Affirms CEQA Action Demurrer Order Finding Late-Joined Developers of UC Berkeley Campus Project Were Necessary, But Not Indispensable, Real Parties In Interest
Third District Affirms CEQA And Attorneys’ Fees Judgments In Favor Of Department Of Water Resources In Monterey Agreement And Amendment Litigation
Against the backdrop of another severe drought, water supply and impact issues continue to be points of contention for water agencies, water users, conservation groups, and the state. And, of course, litigation over water is not limited to water rights and usage, but extends to related environmental review under CEQA. On September 22, 2021, the Third District Court of Appeal issued a published opinion in Central Delta Water Agency v. Department of Water Resources (2021) 69 Cal.App.5th 170, disposing of several consolidated cases and analyzing operation of the state’s massive State Water Project (SWP) through a CEQA lens. While the case does not break any new legal ground, it applies well-recognized CEQA principles to a lengthy and complex fact pattern involving multiple rounds of lengthy litigation, settlement, and EIR preparation.
Continue Reading Third District Affirms CEQA And Attorneys’ Fees Judgments In Favor Of Department Of Water Resources In Monterey Agreement And Amendment Litigation
Is More Litigation the Remedy for Meritless CEQA Litigation? Fourth District Concludes Malicious Prosecution Action Against Losing CEQA Plaintiffs Survives Anti-SLAPP Motion
In an opinion filed April 23, and later certified for publication on May 13, 2021, the Fourth District Court of Appeal affirmed in part an order denying an anti-SLAPP (Strategic Lawsuit Against Public Participation) motion, and held that a malicious prosecution action could proceed against losing CEQA plaintiffs who had unsuccessfully challenged a Mitigated Negative Declaration (MND), but not against their attorneys. Jan Dunning, et al. v. Kevin K. Johnson, APLC, et al. (4th Dist. 2021) 64 Cal. App. 5th 156. While the merits of the malicious prosecution action have yet to be determined, the Court of Appeal’s ruling that the action could even proceed is itself significant given the daunting hurdle posed by the anti-SLAPP statute, and should give pause to project opponents who think that meritless CEQA litigation lacking probable cause and brought with malice can be pursued without potential consequence.
Continue Reading Is More Litigation the Remedy for Meritless CEQA Litigation? Fourth District Concludes Malicious Prosecution Action Against Losing CEQA Plaintiffs Survives Anti-SLAPP Motion
Remedial Legal Logic: Fifth District Doubles Down On Split with Other Districts in Holding CEQA Doesn’t Allow Limited Writ Remedy of Partial EIR Decertification – But Does It Really Matter?
By Arthur F. Coon on
“The life of the law has not been logic: it has been experience.” – Oliver Wendell Holmes, Jr., The Common Law (1881)
“CEQA discourse has become increasingly abstract, almost medieval in its scholasticism.” – former California Governor Edmund G. (“Jerry”) Brown, Jr.
by Arthur F. Coon
On November 24, 2020, the Fifth District Court of Appeal filed its partially published opinion in the latest installment of the long-running CEQA litigation over Fresno County’s approval of the Friant Ranch project. Sierra Club v. County of Fresno (Friant Ranch, L.P., Real Party in Interest) (2020) 57 Cal.App.5th 979. The litigation involves a 942-acre mixed-use development project (2500 residential units, 250,000 square feet of commercial space, 460 acres of open space) for which the Notice of Preparation (NOP) of the EIR was issued in 2007; it has generated an earlier appellate opinion (see my 6/16/14 post here) and a Supreme Court opinion (see my 12/28/18 post here) addressing important standard of review issues centered on the adequacy of the project EIR’s air quality impacts discussion.Continue Reading Remedial Legal Logic: Fifth District Doubles Down On Split with Other Districts in Holding CEQA Doesn’t Allow Limited Writ Remedy of Partial EIR Decertification – But Does It Really Matter?
Closing the “Golden Door”: California Supreme Court Denies Petitions for Review and Depublication Request in CEQA Administrative Record Case
By Arthur F. Coon on
On November 10, 2020, the California Supreme Court – after briefly raising Petitioners’ hopes by extending the time to consider granting review – finally slammed the door shut on further litigation over a recent Fourth District Court of Appeal decision, issuing an order denying the three petitions for review filed by the parties, as well as a request for depublication filed by non-party City of Los Angeles. Golden Door Properties v. S.C (County of San Diego) Case No. S264324. The Court of Appeal’s Golden Door decision, which held lead agencies must retain and not destroy writings within the scope of CEQA’s mandatory and broadly inclusive administrative record statute (Pub. Resources Code, § 21167.6), notwithstanding assertedly contrary record-retention policies, will thus remain intact as published precedent.
Continue Reading Closing the “Golden Door”: California Supreme Court Denies Petitions for Review and Depublication Request in CEQA Administrative Record Case
Keeping the “Golden Door” Cracked Open: California Supreme Court Extends Period to Consider Review of CEQA Administrative Record Case
By Arthur F. Coon on
On October 23, 2020, the California Supreme Court issued an order extending until December 7, 2020, or the date upon which review is either granted or denied, the time for granting or denying review in Golden Door Properties, LLC, et. al. v. Superior Court (County of San Diego et. al., Real Parties in Interest) (4th Dist. 2020) 52 Cal.App.5th 837. The Court of Appeal’s decision, originally published on July 30, and modified upon denial of rehearing on August 25, 2020, held that a lead agency is required to retain, and may not destroy, writings within the scope of CEQA’s mandatory and broadly-inclusive administrative record statute, Public Resources Code § 21167.6.
Continue Reading Keeping the “Golden Door” Cracked Open: California Supreme Court Extends Period to Consider Review of CEQA Administrative Record Case
Third District Dismisses Appeal In CEQA Case As Moot Where Plaintiff Failed To Timely Seek Or Obtain Preliminary Injunction And Project Construction Was Completed Before Trial
By Arthur F. Coon on
In an opinion originally filed on August 26, and later certified for publication on September 16, 2020, the Third District Court of Appeal dismissed a plaintiff group’s (“Parkford”) appeal from an adverse judgment in a CEQA/land use case as moot. Parkford Owners for a Better Community v. County of Placer (Silversword Properties, LLC, et al., Real Parties in Interest) (2020) 54 Cal.App.5th 714.
Continue Reading Third District Dismisses Appeal In CEQA Case As Moot Where Plaintiff Failed To Timely Seek Or Obtain Preliminary Injunction And Project Construction Was Completed Before Trial