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 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.
On November 22, 2016, the California Supreme Court issued a significant Order granting review in Coastal Hills Rural Preservation v. County of Sonoma (2016) 2 Cal.App.5th 1234, and also transferring the matter back to the Court of Appeal (First Appellate District, Div. 1) for reconsideration in light of Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2016) 1 Cal.5th 937, 957-959, fn. 6, and CEQA Guidelines § 15384. The high court further ordered the First District’s opinion to be depublished, and it is therefore no longer citable as binding legal precedent. Both orders were unanimous.
Continue Reading Wither Subsequent Review? Supreme Court Again Weighs In On CEQA Subsequent Review Standards Following Negative Declarations – Grants, Retransfers, and Depublishes First District’s Coastal Hills Rural Preservation Decision
In a 29-page published opinion filed October 14, 2016, the Fourth District Court of Appeal dispensed some good news to municipalities desiring to reasonably regulate retail medical marijuana facilities within their jurisdictional boundaries. In Union of Medical Marijuana Patients, Inc. v. City of San Diego (4th Dist., Div. 1, 2016) 4 Cal.App.5th 103, Case No. D068185, the Court affirmed the trial court’s judgment denying a writ petition on the basis that the City of San Diego’s ordinance regulating the establishment and location of medical marijuana consumer cooperatives was not a “project” subject to CEQA.
Continue Reading Blowing Smoke About Impacts? Fourth District Rejects Speculative CEQA Challenge to San Diego’s Medical Marijuana Consumer Cooperative Ordinance, Holds Zoning Ordinances Are Not Necessarily CEQA “Projects”
The Federal Indian Gaming Regulatory Act (“IGRA”; 25 U.S.C. § 2701 et seq.) allows gaming on Indian lands acquired by the Secretary of the Interior (Secretary) in trust for a tribe’s benefit after October 17, 1988, if, among other things, the Secretary determines it would be in the tribe’s best interest and not detrimental to the surrounding community, and the governor of the state where the land is located concurs with the determination. (25 U.S.C., § 2719(b)(1)(A).) Further, casino-style gaming may be conducted if authorized by a tribal-state compact, and California Constitutional and statutory law designates the Governor as the state officer authorized to negotiate and execute such compacts. (Cal. Const., art. IV, § 19(f); Gov. Code, § 12012.5(d).)
It’s always nice not to lose a hard-won prevailing party cost award due to a court’s imprecise use of party designations – which can get confusing where there are multiple appeals at issue. On October 4, 2016, the Fifth Appellate District Court of Appeal issued a two-page Order entitled “Order Modifying Opinion and Denying Rehearing [Includes Change In Judgment]” in the recently decided consolidated appeals in the Citizens for Ceres v. City of Ceres litigation. The minor change made in the last sentence of the opinion’s disposition clarified that: (1) Respondents (City of Ceres and Real Party Wal-Mart Stores, Inc., et al.) were awarded costs as prevailing parties in the merits appeal, which affirmed the trial court’s judgment denying the writ petition challenging the EIR, statement of overriding considerations, and approval of Wal-Mart’s controversial Ceres project; and (2) Appellants (Wal-Mart, et al.) were awarded costs as prevailing parties in the separate costs appeal, which resulted in the published portion of the opinion reversing the trial court’s order taxing costs of $44,889.71 claimed by Wal-Mart for amounts it had to reimburse the City for administrative record preparation. My post on the Court’s partially published September 12, 2016 opinion in the case can be found here.
The Association of Environmental Professionals (AEP) has developed a new CEQA reference website designed to provide detailed, authoritative, and easy to understand information on CEQA and CEQA compliance. While the site went live in April 2016, it is still in the process of development; it can be accessed by going to www.califaep.org and clicking on the CEQA Portal logo.
Continue Reading AEP Launches New CEQA Portal Website As Compliance Resource
Almost five years ago, in September 2011, Miller Starr Regalia launched its first blog, CEQA Developments (www.ceqadevelopments.com), to highlight the firm’s experience and provide an up-to-date resource in the area of CEQA law. As readers and CEQA practitioners can attest, there has been no shortage of “CEQA developments” to analyze and report on over the years, and I fully expect that trend to continue.
At the same time, and while CEQA and land use law go together like “hand and glove,” there have always been and continue to be a great many interesting and important non-CEQA land use developments under distinct laws and legal schemes – including, but not limited to, the Planning and Zoning Law, the Subdivision Map Act, the Brown Act, the Public Records Act, the Elections Code, the Mitigation Fee Act, and the Eminent Domain Law, as well as the Federal and State constitutional provisions prohibiting the taking or damaging of property without payment of just compensation. The firm’s Land Use Practice Group has deep experience and expertise entitling and defending a wide range of development projects, implicating numerous areas of land use law, throughout the state.
In the second of two published opinions filed May 10, 2016, the Fourth District Court of Appeal affirmed the trial court’s judgment upholding the lead agency designation and EIR for a controversial project proposing to pump 50,000 acre-feet annually for a 50-year period from an aquifer underlying Cadiz, Inc.’s Mojave Desert property in San Bernardino County. Center For Biological Diversity, et al. v. County of San Bernardino, et al., (4th Dist., Div. 3, 2016) 247 Cal.App.4th 326, Case No. G051058. (For my post covering the Court’s related published opinion, see “Fourth District Rejects CEQA Challenges To Large Mojave Desert Groundwater Pumping Project In Separate Published Opinions,” by Arthur F. Coon, posted May 11, 2016.) Continue Reading Fourth District Upholds EIR For Cadiz Mojave Desert Groundwater Pumping Project Against Various CEQA Challenges