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 decision filed May 25, and belatedly ordered published June 15, 2016, the Fourth District Court of Appeal affirmed and reversed in part a judgment of the San Bernardino County Superior Court.  It affirmed the judgment to the extent it held the Wal-Mart Tamarisk Marketplace Project (Project) EIR inadequately analyzed the Project’s GHG emissions and that the Project was inconsistent with the City of Victorville’s (City) General Plan; it reversed to the extent the judgment failed to also find that City violated CEQA by not recirculating the EIR and violated the Subdivision Map Act (Map Act) by failing to make all findings required by Government Code § 66474.  (Spring Valley Lake Association v. City of Victorville (Wal-Mart Stores, Inc., Real Party in Interest) (4th Dist., Div. 1) 248 Cal.App.4th 91.)

 

Continue Reading Fourth District Holds Wal-Mart Victorville Project EIR Violates CEQA; Project Approval Findings Violate Map Act; And Project Is Inconsistent With General Plan

In a 5-2 decision filed November 30, 2015, the California Supreme Court reversed the judgment of the Court of Appeal which had upheld the EIS/EIR for the controversial Newhall Ranch development project. Center For Biological Diversity, et al. v. California Department of Fish and Wildlife (The Newhall Land and Farming Company, Real Party in Interest) (2015) 62 Cal.4th 204. The high court approved the EIS/EIR’s methodology analyzing the significance of the project’s greenhouse gas (GHG) emissions in terms of reductions from projected “business as usual” (BAU) emissions consistent with AB 32’s statewide reductions mandate, rather than against some absolute numeric limit above the project site’s “baseline” emissions. However, it held the GHG analysis lacked supporting substantial evidence and a cogent explanation correlating the project-specific reductions to AB 32’s mandated state-wide reductions so as to demonstrate consistency with the latter’s goals under the approved methodology. The Court further held the EIS/EIR violated Fish & Game Code § 5515’s prohibition on the taking of “fully protected” fish species by including mitigation measures providing for the collection and relocation by USFWS of the unarmored threespine stickleback. Finally, the Court held – under the particular factual circumstances of the case – that certain issues raised by plaintiffs during an optional public comment period on the Final EIS/EIR were timely raised so as to sufficiently exhaust administrative remedies under Public Resources Code § 21177(a).

Continue Reading Lost in Translation: Supreme Court Elucidates CEQA GHG Analysis, “Fully Protected” Species Take Prohibition, And Issue Exhaustion In Decision Finding Newhall Ranch Development EIR Flawed

In an opinion filed September 10, and later ordered partially published on October 9, 2015, the Court of Appeal affirmed the substance of a judgment upholding an EIR for a regional shopping center renovation project in Carlsbad, California, reversing only with respect to certain cost award issues treated in an unpublished portion of the opinion. North County Advocates v. City of Carlsbad (Plaza Camino Real, LP, et al., Real Parties in Interest) (4th Dist., Div. 1, 2015) 241 Cal.App.4th 94. The published portions of the opinion address the case’s facts, applicable CEQA rules and standards of review, and traffic baseline issues; the unpublished portions address issues concerning traffic mitigation measures, the adequacy of the City of Carlsbad’s (“City”) responses to comments, and the propriety of the various aspects of the trial court’s record preparation cost awards that were made to the City and real parties (“Westfield”) as prevailing parties.

Continue Reading Fourth District Addresses CEQA Baseline Issues In Partially Published Opinion Upholding EIR For Carlsbad Shopping Mall Renovation

On September 18, 2015, I posted a “Part I” piece on the “efficiency improvements” category of OPR’s Preliminary Discussion Draft of its “Proposed Updates to the CEQA Guidelines” (the “Discussion Draft”). That post can be found here. This follow up post (Part II) covers OPR’s most significant proposals contained in the Discussion Draft’s remaining two categories, i.e., its two proposed “Substance” improvements and its first three proposed “Technical” improvements, but excludes the remaining dozen proposals that OPR classifies as only “minor technical improvements.”

Continue Reading Proposed CEQA Guidelines Amendments: A Critique of OPR’s “Preliminary Discussion Draft” (Part II – Proposed “Substance” and Major “Technical Improvements”)