In a published opinion filed January 31, 2018, the Fifth District Court of Appeal affirmed the trial Court’s judgment issuing a writ of mandate voiding the California State Air Resources Board’s (“CARB”) 2014 amendments to its 2008 Truck and Bus Regulation and its related environmental review documents, which were the functional equivalent of a negative declaration under CARB’s certified regulatory program. John R. Lawson Rock & Oil, Inc. v. State Air Resources Board (2018) 20 Cal.App.5th 77. The 2008 regulations required retrofitting and upgrading of large diesel vehicles to the equivalent of 2010 or newer model engines to reduce emissions of diesel particulate matter (PM), nitrogen oxides (NOx), and greenhouse gases (GHGs).
In an opinion filed February 5 and later ordered published on February 27, 2018, the Sixth District Court of Appeal affirmed a judgment denying Aptos Residents Association’s (“ARA”) writ petition challenging Santa Cruz County’s approval, as categorically exempt from CEQA, of real party Crown Castle’s (“Crown”) project to extend Verizon’s wireless coverage by installing a 13-microcell Distributed Antenna System (“DAS”) in Aptos’ Day Valley area. Aptos Residents Association v. County of Santa Cruz (Crown Castle, Inc., Real Party in Interest (2018) ____ Cal.App.5th ______.
In an opinion filed on January 4, and later certified for partial publication on January 30, 2018, the Fifth District Court of Appeal affirmed a trial court judgment rejecting appellant’s claim that the EIR for the City of Visalia’s general plan update improperly omitted an analysis of the plan’s potential urban decay effects. Visalia Retail, L.P. v. City of Visalia (5th Dist. 2018) _____ Cal.App.5th _____. A new land use policy included in the update for areas designated “Neighborhood Commercial” provided that no shopping center tenant in such areas could be larger than 40,000 square feet. Appellant, a property owner affected by the policy, objected to the City and submitted the opinion of an experienced local commercial real estate broker that the policy would cause anchor tenant vacancies and/or lower-traffic anchors that would reduce landlords’ rental income used for maintenance and improvements, and would have other economic effects resulting in a “downward spiral of physical deterioration” and “physical blight and ‘urban decay’ deterioration[.]”
On January 26, 2018, the Natural Resources Agency issued a Notice of Proposed Rulemaking to the public regarding its proposed updates to the CEQA Guidelines; the Notice and related rulemaking materials are available for review on the Agency’s website at http://resources.ca.gov/ceqa/. Public hearings on the rulemaking will be held in Los Angeles on March 14 and in Sacramento on March 15, 2018, and the Agency has set a deadline for written comments of 5:00 p.m. on March 15, 2018.
In a lengthy, partially published opinion filed January 12, 2018, the First District Court of Appeal (Division 3) partly affirmed, but in large part reversed, the trial court’s judgment granting a writ of mandate directing the City of Los Angeles to set aside its FEIR certification and approval of BNSF Railway Company’s (“BNSF”) project to construct a new intermodal railyard facility, near the Port of Los Angeles, to handle containerized cargo transported through the ports of Long Beach and Los Angeles. City of Long Beach, et al., Xavier Becerra (Attorney General, as Intervener) v. City of Los Angeles, (BNSF Railway Company, Real Party in Interest) (2018) 19 Cal.App.5th 465.
In a lengthy opinion filed December 20, 2017, and belatedly ordered published on January 8, 2018, the Fourth District Court of Appeal, Division 1, affirmed the trial court’s judgment denying a writ petition asserting CEQA and land use law challenges to the City of San Diego’s (“City”) approval of a small high school on previously developed, open-space designated lands adjacent to a commercial equestrian facility. Clews Land and Livestock, LLC v. City of San Diego (Jan Dunning, et al, Real Parties In Interest) (2017) 19 Cal.App.5th 161. The opinion underscores the critical importance of correctly interpreting and scrupulously following a local lead agency’s administrative appeal procedures in order to exhaust administrative remedies and preserve CEQA claims for judicial review. (The non-CEQA, land use law aspects of the opinion will not be analyzed here but will be covered in a subsequent blog post by my partner, Bryan Wenter.)
In an opinion filed on November 30, and belatedly ordered published on December 22, 2017, the Second District Court of Appeal, Division 1, affirmed the trial court’s judgment denying all CEQA challenges asserted by plaintiff/appellant Los Angeles Conservancy (“Conservancy”) to the City of West Hollywood’s (“City”) approval of the “Melrose Triangle” project (“project”). Los Angeles Conservancy v. City of West Hollywood (Charles Company, et al., Real Parties in Interest) (2017) ____ Cal.App.5th _____.
The project proposed office, retail, residential and restaurant uses, and public and private open space and pedestrian paseos, on a 3-acre site at the City’s western “gateway,” and called for demolition of the site’s existing structures, which included an architecturally significant building originally constructed in 1928 and potentially eligible for listing in the California Register of Historical Resources (the “9080 Building”). By 2012 amendments, the City’s general plan called for the site’s development with an iconic “Gateway” building with exemplary architecture, and significant open space and pedestrian walkthroughs open to the sky. Developer Charles Company’s proposed Gateway Building would occupy the space currently occupied by the 9080 Building, and other buildings and features on the site were also proposed to implement the general plan’s development vision.
Continue Reading Second District Holds Melrose Triangle Project EIR’s Alternatives Analysis and Responses to Comments Comply with CEQA, Upholds City of West Hollywood’s Findings Rejecting Historic Building Preservation Alternative as Infeasible
As we move into a brand new year of tracking CEQA developments, it seems like an appropriate time to survey and briefly recap some of the many significant published case law developments that occurred over the past year. (For those with an interest in delving deeper into any of the cases mentioned below, hyperlinks to my relevant prior posts are provided at the end of the each brief case summary.)
A fundamental prerequisite to a viable lawsuit is a plaintiff possessing standing to bring it, and in writ of mandate proceedings that generally means a person or entity actually possessing a beneficial interest in the legal relief being sought. Nonetheless, CEQA’s broad statutory standing provisions, the “public interest exception” to beneficial interest standing, constitutional associational privacy claims, and the general unavailability of civil discovery (due to the general irrelevance of extra-record evidence) in administrative mandamus actions have all conspired to allow CEQA litigation standing abuses to become a large – and largely unchecked – problem. Indeed, I have previously analyzed and written about this particular CEQA litigation abuse in depth. (See, e.g., “Standing Against Environmental Injustice: Some Thoughts On Facing The Need For CEQA Litigation Reform,” by Arthur F. Coon, posted July 18, 2017.) I am thus happy to be able to report that, in an opinion filed November 28, and ordered published on December 19, 2017, the Fourth District Court of Appeal has now done something about it. Specifically, it properly upheld the use of civil discovery directed to the issue of a plaintiff organization’s standing in a CEQA writ proceeding, and also affirmed the trial court’s judgment of dismissal after granting a terminating sanction for plaintiff’s discovery abuse in attempting to thwart such discovery. This important new decision is Creed-21 v. City of Wildomar (Walmart Real Estate Business Trust, Real Party in Interest) (4th Dist., Div. 2, 2017) 18 Cal.App.5th 690.
In a partially published opinion filed December 4, 2017, the Second District Court of Appeal affirmed the trial court’s post-remand judgment and held that CEQA’s remedies statute – Public Resources Code § 21168.9 – allows a court issuing a writ in a CEQA proceeding to partially decertify an EIR, and to leave unaffected project approvals in place when doing so. Center for Biological Diversity, et al. v. California Department of Fish and Wildlife (The Newhall Land and Farming Company, Real Party in Interest) (2017) ____ Cal.App.5th _____.
The opinion resulted from the second appeal in long-running litigation challenging approvals for the controversial Newhall Ranch development project in northwest Los Angeles County. (I won’t reiterate the underlying facts and legal issues raised in the merits litigation, but my post on the Supreme Court’s November 30, 2015 opinion in the matter can be found here, and my post on the Court of Appeal’s July 11, 2016 partially published opinion on remand can be found here).