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) ___ Cal.App.5th ___.
Senator Scott Weiner’s Senate Bill (SB) 288 has passed both houses of the California Legislature, and was enrolled for proofing on September 4, 2020, prior to its delivery to the Governor for signature. The new law’s prefatory declarations reflect a stated intent to expand and enact CEQA exemptions to reduce the time and cost of delivering transit and sustainable transportation projects in California, and thereby boost the COVID-damaged economy while furthering the State’s environmental goals.
In a published opinion filed on August 17, 2020, the Third District Court of Appeal mostly affirmed the trial court’s judgment upholding Placer County’s partial abandonment of public easement rights in an emergency access/public transit road connecting two Lake Tahoe-area residential subdivisions; the County took the action to resolve disputes that had arisen after one subdivision’s residents began using the road as an all-purpose public road and short-cut through the other subdivision to get to Northstar-at-Tahoe. Martis Camp Community Association v. County of Placer, et al. (Retreat at Northstar Association, et al., Real Parties in Interest) (2020) _____ Cal.App.5th _____________. My partner Bryan Wenter’s post covers the land use issues at the heart of the case, and can be found here; readers should consult that post for the case’s factual background and primary holdings. This post covers the CEQA issue at the “tail end” of the opinion, which involved application of CEQA’s “subsequent review” rules to County’s partial road abandonment project.
Continue Reading Hitting A CEQA Snag: Third District Affirms Rejection of Statutory Road Abandonment And Brown Act Challenges And Inverse Condemnation Claim, But Holds Placer County Violated CEQA By Adopting Addendum To Wrong Project’s EIR
On August 27, 2020, the California Supreme Court filed its unanimous opinion, authored by Justice Corrigan, in Protecting Our Water and Environmental Resources v. County of Stanislaus (2020) ___ Cal.5th ___ (“POWER”). The POWER decision is a “mixed bag” for the parties to the litigation themselves: the Court rejected both (a) the County’s position that all its well permits are ministerial approvals exempt from CEQA, and (b) the environmental plaintiffs’ converse position that all such permits are discretionary approvals subject to CEQA. For non-parties, the case’s significance lies in its elucidation of the legal rules and principles governing the key distinction between discretionary and ministerial projects – a fundamental distinction that determines CEQA’s threshold applicability to agency approvals and actions. In following appellate precedent focusing not on permitting ordinances and regulations as a whole and in the abstract, but more granularly on the specific regulatory controls applicable to a particular permit application, the high Court in POWER eschews the “all or nothing” approach urged by the parties and endorses a more nuanced and contextual analysis that is both reasonable and fully consonant with CEQA and its objectives.
Continue Reading Supreme Court Holds Stanislaus County Well Permit Decisions Under State Standards Are Neither Categorically Ministerial Nor Categorically Discretionary In Nature; Rather, Whether CEQA-Triggering Discretion Exists Must Be Determined On Case-By-Case Basis
In a detailed 6-page order, issued by Presiding Justice McConnell and filed on August 25, 2020, the Fourth District Court of Appeal denied three petitions for rehearing, and “polished up” its lengthy published opinion filed at the end of last month in Golden Door Properties, LLC et al v. Superior Court of San Diego (County of San Diego, et al, Real Parties in Interest) (4th Dist. 2010) ____ Cal.App.5th ____. (My August 5, 2020 post on the case can be found here.) Most of the Court’s changes were minor and technical in nature, pertaining more to issues of concern to the parties on remand, rather than its major precedential holdings, but a few were noteworthy.
Continue Reading Burnishing the “Golden Door”: Fourth District Modifies Recent Opinion Requiring Lead Agency Preservation of CEQA Administrative Record Documents, Denies Petitions for Rehearing and Leaves Judgment Unchanged
In a 77-page published opinion filed on July 30, 2020, the Fourth District Court of Appeal (Div. One) issued a writ of mandate largely overturning San Diego Superior Court rulings denying plaintiffs’ motions to compel discovery and to augment the administrative record in a CEQA case; the disputes arose from Real Party San Diego County’s admitted deletion of email documents as “non-official records” pursuant to its records retention policies. Golden Door Properties, LLC et al. v. Superior Court of San Diego (County of San Diego, et al., Real Parties in Interest) (4th Dist. 2020) ___ Cal.App.5th ___.
Continue Reading “For the Record”: Fourth District Holds CEQA’s “Mandatory” And “Broadly Inclusive” Administrative Record Statute Requires Lead Agency To Retain Documents Within Its Scope And Not Destroy Them Prior To Record Preparation
A little over a year ago, I posted about the filing of a federal RICO (the federal “Racketeer Influenced and Corrupt Organizations Act”; 18 U.S.C. § 1962 et seq.) lawsuit by developer Relevant Group, LLC and related entities (“Relevant”) alleging that defendants (Stephan “Saeed” Nourmand and Michael Nourmand and their business entities) filed and threatened frivolous CEQA suits solely to “shake down” and extort monetary settlements – without regard to environmental concerns – from economically vulnerable hotel project developers. (See “CEQA Meets RICO: True Stories Of Extortion and Litigation Abuse in Tinseltown,” posted July 12, 2019.) Since then, the litigation has progressed significantly. After surviving a robust motion to dismiss, the case has become “at issue” with defendants’ filing of an answer to plaintiffs’ Second Amended Complaint (“SAC”) on June 24, 2020, and the District Court filing a Scheduling and Case Management Order on July 24, 2020.
With 2020 more than half gone, here’s a quick look at what’s been going on with the California Supreme Court in CEQA matters:
In a partially published opinion filed June 25, 2020, the First District Court of Appeal (Division 5) reversed the trial court’s judgment entered after sustaining a demurrer without leave to amend; it held that a non-profit group’s petition and complaint for declaratory relief adequately stated a cause of action on the basis that U.C. Berkeley’s approval of student enrollment increases far beyond those projected in its 2005 Long Range Development Plan (“LRDP”), and analyzed in the related 2005 Program EIR (“PEIR”), constituted a “project” requiring CEQA review and mitigation. (Save Berkeley’s Neighborhoods v. The Regents of the University of California, et al. (2020) ___ Cal.App.5th ___.) The published portion of the opinion also held that the enrollment increases were not statutorily exempt under Public Resources Code § 21080.09, which requires an EIR for LRDPs. (In the unpublished part of the opinion, the Court held Petitioner had alleged sufficient facts to overcome Respondents’ statute of limitations argument for purposes of demurrer, that the case was not shown to be moot on the basis of the record before the Court, and that Petitioner had failed to show the trial court erred in denying its motion to compel production of documents pursuant to requests the trial court had found overbroad in scope.)
Continue Reading First District Holds U.C. Berkeley Campus’s Decision To Increase Student Enrollment Above Maximum Projected Level Analyzed In EIR for Long Range Development Plan Is A “Project” Under CEQA And Not Exempt Under Public Resources Code § 21089.09
In a mammoth 132-page published opinion (with an additional five pages of appendices) filed on June 12, 2020, the Fourth District Court of Appeal (Division One) mostly affirmed the trial court’s judgment invalidating San Diego County’s approvals of a 2018 Climate Action Plan (CAP), related Guidelines for Determining Significance, and related Supplemental EIR (SEIR). The opinion – which marked “the third time the County’s attempt to adopt a viable climate action plan and related CEQA documents” had been before the Court – resolved consolidated appeals in three cases, in which the lead plaintiffs were Golden Door Properties, LLC and the Sierra Club. (Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467.) While the Court of Appeal reversed the trial court’s findings that the CAP was inconsistent with the County’s General Plan (applying the familiar highly deferential standard of review to the County’s consistency determination), that several of the County’s responses to SEIR comments were inadequate, and that the SEIR’s geographical scope of study for cumulative impacts was inconsistent, it otherwise affirmed the trial court’s findings of significant CEQA violations affecting the CAP and SEIR.