On March 13, 2019, at the losing Petitioner/Appellant’s request, the California Supreme Court ordered depublication of the Sixth District’s partially published opinion in Alliance of Concerned Citizens Organized for Responsible Development v. City of San Juan Bautista (2018) 29 Cal.App.5th 424 (No. S253725); my December 3, 2018 post on the case can be found here. Review of the decision was not sought or granted, so its result stands unaffected by the high court’s action. The main takeaway from this decision was that the nature of a final judgment is determined by its substance and effect in resolving the claims raised in the action on their merits, rather than by any label the court attaches to it. The grant of depublication means only that, subject to very limited exceptions, the opinion “must not be cited or relied on by a court or a party in any other action.” (Cal. Rules of Ct., Rule 8.1115(a).)
Spring now being practically “in the air,” a bit of CEQA “spring cleaning” seems appropriate – so here’s a brief look at the status of some significant CEQA-related cases that are now pending before our Supreme Court, or in which its review has been sought:
On November 20, 2018, in response to a petition for review filed by the Target Superstore project’s opponent, plaintiff (and respondent on appeal) Citizens Coalition Los Angeles, the California Supreme Court denied review and ordered the Court of Appeal’s opinion depublished. My September 7, 2018 blog post analyzing and critiquing the Court of Appeal’s decision, which was previously published at Citizens Coalition Los Angeles v. City of Los Angeles (2018) 26 Cal.App.5th 561, can be found here.
Just a few updates/items of possible interest as we head toward the end of this short (but very cold and wet) month:
The close of OPR’s public comment period on its Discussion Draft of the CEQA Climate Change Advisory is March 15, 2019, at 5:00 p.m.
OPR also released in late December 2018 its Technical Advisory on Evaluating Transportation Impacts Under CEQA, containing its technical recommendations on VMT assessment, thresholds of significance, and mitigation measures, as well as incorporating Guidelines changes and more recent feedback since release of the April 2018 technical advisory. Details on these and related developments can be found in OPR’s February 21, 2019 email and on its website.
In a published opinion filed February 13, 2019, the Fourth District Court of Appeal (Division 3) reaffirmed the need for a CEQA litigant challenging a coastal development permit to appeal to the Coastal Commission before suing. Fudge v. City of Laguna Beach (Hany Dimitry; Real Party in Interest) (2019) ___ Cal.App.5th ___. The Court refused plaintiff’s invitation to make the simple complex, and followed published precedents requiring a plaintiff to exhaust the statutory administrative remedy of an appeal to the Commission to ripen a litigation challenge.
In a partially published opinion filed January 30, 2019, the First District Court of Appeal (Div. 1) affirmed a judgment denying a writ petition challenging the City of Berkeley’s approval of use permits for three single-family homes on three contiguous hillside parcels. The Court upheld the City’s use of the CEQA Guidelines § 15303(a) (Class 3) categorical exemption for new construction of small structures, including “up to three single-family residences” in “urbanized areas.” Berkeley Hills Watershed Coalition v. City of Berkeley (Matthew Wadlund, et al., Real Parties in Interest) (2019) 31 Cal.App.5th 880.
Continue Reading First District Upholds CEQA Class 3 Categorical Exemption For Single Family Residence Projects In Berkeley Hills, Rejects Claim That “Location” Exception Applies Based On Site’s Location Within Mapped Earthquake Fault And Landslide Areas
Most real estate developers would likely agree that, even when correctly applied and complied with, CEQA can be an onerous law which can significantly complicate, delay, increase the cost of, and in some cases (particularly where CEQA litigation is involved) even preclude projects. But what recourse does a project applicant have under the law when CEQA is misapplied – and blatantly so – by a local agency which denies approval of a project that is clearly exempt from CEQA on the meritless basis that extensive (and expensive) CEQA review is required? When the developer’s only recourse is time-consuming and expensive litigation to obtain a writ of mandate setting aside the agency’s illegal action subjecting the project to CEQA, can the developer who succeeds in obtaining the writ recover from the public agency compensation and damages resulting from the temporary “taking” of all reasonable economic use of its property?
In an opinion filed December 27, 2018, and later ordered published on January 15, 2019, the Fourth District Court of Appeal (Div. 1) affirmed the trial court’s judgment rejecting CEQA and other challenges to the City of San Diego’s (City) approval of an amended and restated lease of City-owned land containing an oceanfront amusement park in its Mission Beach neighborhood (Belmont Park), which restated lease potentially extends the prior lease term for a significant period. San Diegans For Open Government v. City of San Diego (Symphony Asset Pool XVI, LLC, Real Party in Interest) (2019) 31 Cal.App.5th 349.
In an opinion filed December 18, 2018, and later ordered published on January 10, 2019, the First District Court of Appeal affirmed a judgment denying appellant citizen groups’ writ petition challenging the City of St. Helena’s approval of an 8-unit, multifamily housing project and related demolition and design review. McCorkle Eastside Neighborhood Group, et al. v. City of St. Helena, et al. (2019) 31 Cal.App.5th 80. The decision applied the basic principle that CEQA does not apply to ministerial project approvals, and further clarified that CEQA does not apply to “mixed” discretionary/ministerial approvals where the “discretionary component” does not give the agency the authority to mitigate environmental impacts. It held that because the City’s discretion under its local design review ordinance does not extend to addressing environmental effects it does not implicate CEQA, and therefore the City’s reliance on the CEQA Guidelines’ Class 32 exemption was unnecessary.
Continue Reading Delineating CEQA’s Scope: First District Holds CEQA Does Not Apply To Ministerial Approval Of Multifamily Housing Project Allowed By Right Under Zoning Where City’s Discretion Was Limited To Design Review
Late last month the Governor’s Office of Planning and Research (OPR) released two documents of interest to CEQA practitioners. One is a discussion draft of a “CEQA and Climate Change Advisory.” The other is an update to its previous “Technical Advisory on Evaluating Transportation Impacts in CEQA.”