In an opinion filed August 10, and later ordered published on September 7, 2018, the Fourth District Court of Appeal (Div. 2) affirmed a judgment denying Friends of Riverside’s Hills’ (FRH) writ petition challenging a residential development permit and related Negative Declaration issued by the City of Riverside (City) for a six-home, 11-acre subdivision in an environmentally sensitive area.  Friends of Riverside’s Hills v. City of Riverside (Carlton R. Lofgren, as Trustee, etc., et al., Real Parties in Interest) (2018) ___ Cal.App.5th ____.

Continue Reading Arguing Impacts By Proxy: Fourth District Holds CEQA Does Not Require EIR Absent Evidence That Subdivision Approval Actually Violated Applicable Land Use Regulations Adopted to Mitigate Environmental Impacts

On September 7, 2018, Governor Brown signed two bills amending CEQA in relatively minor ways that will become effective January 1, 2019.

AB 2341 (Chapter 298) (Mathis) adds Public Resources Code § 21081.3 to provide that “a lead agency is not required to evaluate the aesthetic effects of a project and aesthetic effects shall not be considered significant effects on the environment if the project involves the refurbishment, conversion, repurposing, or replacement of an existing building that meets … [five specified] requirements[.]”  To fall within this new partial statutory exemption, (1) the building must be abandoned, dilapidated (defined as “decayed, deteriorated, or fallen into such disrepair through neglect or misuse so as to require substantial repair for safe and proper use”), or have been vacant for over a year; (2) the site must be immediately adjacent to parcels developed with qualified urban uses or 75 percent of its perimeter must adjoin such parcels (with the remainder adjoining parcels previously so developed); (3) the project must include housing construction; (4) any new structure must “not substantially exceed the height of the existing structure”; and (5) the project must “not create a new source of substantial light or glare.”

Continue Reading More Mild Than Wild: Legislature Tinkers With Modestly Reforming Scope Of CEQA Analysis In Two New Laws

In a lengthy published opinion filed August 23, 2018, the Second District Court of Appeal reversed the trial court’s judgment, and upheld the City of Los Angeles’ addendum to a prior project-level EIR for a Target Superstore as legally sufficient CEQA compliance for a revised plan-level  project which amended a specific plan so as to authorize that same development.  Citizens Coalition Los Angeles v. City of Los Angeles (Target Corporation, Real Party in Interest) (2018) ___ Cal.App.5th ___.  The Court further held the specific plan amendment was not impermissible “spot zoning,” even if approved only to authorize the site-specific Superstore project, because there was a “reasonable basis” for the City to find it was in the public interest.  While these holdings are not surprising, some of the analysis used to reach the Court’s clearly correct CEQA holding – which analogizes subsequent review rules to piecemealing concepts – is novel and potentially confusing, as discussed below.

Continue Reading Second District Applies CEQA’s “Subsequent Review” Rules to Uphold EIR Addendum for Revised Target Superstore Project Including “Spot-Zoning” Specific Plan Amendment Authorizing Use

In a lengthy published opinion filed on August 22, 2018, the First District Court of Appeal (Div. 4) affirmed the trial court’s judgment rejecting various CEQA challenges to the City of San Francisco’s (“City”) Program EIR analyzing the environmental impacts of its 2009 General Plan Housing Element, which it adopted on June 29, 2011.  San Franciscans for Livable Neighborhoods v. City and County of San Francisco (2018) ___ Cal.App.5th ___.  San Franciscans for Livable Neighborhoods (“SFLN”), an unincorporated association comprised of more than a dozen neighborhood organizations, had challenged the EIR – mostly unsuccessfully – in the trial court.  It then appealed from adverse portions of the judgment concerning the EIR’s baseline and impact analyses for traffic, water supply, land use, and visual resources impacts; the City’s decision not to recirculate the EIR; the EIR’s alternatives analysis; and the feasibility of certain proposed mitigation measures.

Continue Reading “Growing Pains”: First District Holds Program EIR for San Francisco’s General Plan Housing Element Amendment Complies with CEQA

In an opinion filed July 16, and belatedly ordered published on August 9, 2018, the First District Court of Appeal (Division 5) affirmed the trial court’s judgment setting aside the City of Fremont’s approvals of a mixed residential/retail project (“Project”) and related Mitigated Negative Declaration (“MND”), and ordering preparation of an EIR based on the Project’s potentially significant aesthetic and traffic impacts on the Niles historical district.  Protect Niles v. City of Fremont (Doug Rich, et al., Real Parties in Interest) (2018) ____ Cal.App.5th ____.  The opinion is a good reminder of the legal vulnerability of any species of negative declaration under CEQA’s applicable “fair argument” standard of review.  It also provides guidance in the areas of mootness; analysis of aesthetic, historical resources, traffic level of service (“LOS”), and traffic safety impacts; the operation of traffic thresholds of significance; and the nature of substantial evidence sufficient to support a “fair argument,” both generally and in the unique “historical district” context presented by this particular case.

Continue Reading Context Matters: First District Holds CEQA Requires EIR, Not MND, To Analyze Mixed-Use Project’s Potentially Significant Aesthetic And Traffic Impacts On Fremont’s Niles Historical District

In an opinion filed June 28, and later ordered modified and published on July 27, 2018, the Second District Court of Appeal (Div. 6) affirmed the trial court’s $21,160.46 cost award in favor of a prevailing party public agency for costs associated with preparing the administrative record in a CEQA case, despite petitioner’s election to prepare the record, where the petitioner had unreasonably delayed and the agency acted reasonably.  LandWatch San Luis Obispo County v. Cambria Community Services District (2018) 25 Cal.App.5th 638.

Continue Reading Second District Affirms Order Awarding CEQA Record Preparation Costs to Agency That Took Over Process After Unreasonable Delays, Notwithstanding Petitioner’s Election to Prepare Record

In an opinion filed June 28, and later ordered published on July 27, 2018, the Second District Court of Appeal (Div. 6) affirmed the trial court’s judgment dismissing on demurrer a writ petition seeking to compel the County of San Luis Obispo to comply with CEQA in issuing well construction permits to four agricultural enterprises, mostly for vineyard irrigation.  The Court held County’s governing local ordinance, which addresses only water quality issues and incorporates fixed technical standards for well construction from relevant Department of Water Resources (DWR) Bulletins, established a ministerial scheme for issuing such permits and does not confer “discretion to shape a well permit to mitigate environmental damage arising from groundwater overuse.”  California Water Impact Network v. County of San Luis Obispo (Justin Vineyards and Winery, LLC et al., Real Parties in Interest) (2018) 25 Cal.App.5th 666.

Continue Reading Second District Holds CEQA Does Not Apply to San Luis Obispo County’s Issuance of Well Construction Permits Under Its Ministerial Governing Ordinance

Yesterday marked another significant step toward completion of the years-long journey of the first major CEQA Guidelines update in decades.  The California Natural Resources Agency gave notice on July 2, 2018 of its modifications to OPR’s originally-proposed Guidelines changes.  The Agency called for written comments, limited to these “15-day language” modifications, to be submitted by July 20, 2018.  It noted that its staff will review and respond to comments received by that date as part of the formal rulemaking process, which began with the Agency (after receipt of OPR’s proposed Guidelines revisions) when it published its Notice of Proposed Rulemaking back on January 26, 2018.

Continue Reading Natural Resources Agency Announces Proposed CEQA Guidelines Modifications, Calls For Written Comments By July 20, 2018

In a published opinion filed June 13, 2018, the Second District Court of Appeal (Div. 4) affirmed a judgment denying a writ of mandate and declaratory relief in an action challenging the California State Lands Commission’s (“Commission”) determination that CEQA Guidelines § 15301’s categorical exemption for “existing facilities” applied to its renewal of PG&E’s leases of state-owned lands needed to operate the Diablo Canyon nuclear power plant until federal licensures expire in 2025. World Business Academy v. California State Lands Commission (Pacific Gas & Electric Company, Real Party in Interest) (2018) ____ Cal.App.5th _____.  The Court rejected petitioner/appellant World Business Academy’s arguments that the consolidated lease replacement, which maintains the status quo at the plant until 2025, did not fall within the exemption, or was subject to the “unusual circumstances” exception, and also rejected arguments that it violated the public trust doctrine.

Continue Reading Second District Holds CEQA’s Existing Facilities Categorical Exemption Applies To State Lands Commission/PG&E Lease Extension For Operation Of California’s Last Active Nuclear Power Plant Until 2025 Closure

In a published decision filed June 12, 2018, the Second District Court of Appeal (Div. 6) held that the same broad definition of a “project” that mandates more extensive CEQA review of activities undertaken or approved by public agencies also applies in determining the scope of statutory exemptions that serve to exempt certain projects from CEQA review.  County of Ventura v. City of Moorpark, Broad Beach Geologic Hazard Abatement District (2018) ___ Cal.App.5th ___.  The Court of Appeal affirmed the trial court’s judgment to the extent it rejected Ventura County’s CEQA, preemption, and extraterritorial regulation challenges to a settlement agreement between the City of Moorpark and the Broad Beach Geologic Hazard Abatement District (BBGHAD), a state law entity created to carry out a Malibu beach restoration project.  But it reversed with directions to declare void (as unlawful abdications of BBGHAD’s police power) certain of the settlement agreement’s provisions which severely limited BBGHAD’s authority to modify project haul routes in the event of changed circumstances.

Continue Reading “Sauce For The Gander”: Second District Holds CEQA’s Broad Definition Of “Project” Also Applies In Determining Scope of Activity To Which Statutory Exemption Applies