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) _____ Cal.App.5th _____.  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.”

Continue Reading CEQA Regulatory Update: OPR Provides Further Guidance on VMT, Asks for Input on GHGs; Guidelines Revisions Now Effective

In a unanimous 33-page opinion authored by Justice Ming Chin and issued on December 24, 2018, the California Supreme Court addressed the standard of review for claims challenging the legal sufficiency of an EIR’s discussion of environmental impacts, and also CEQA’s rules regarding deferral and adequacy of mitigation measures.  Sierra Club v. County of Fresno (Friant Ranch, L.P.) (2018) ___ Cal.5th ___, Case No. S219783.  In affirming in part and reversing in part the Court of Appeal’s judgment, the Supreme Court held that the EIR for the Friant Ranch Project – a 942-acre master-planned, mixed-use development with over 2,500 senior residential units, 250,000 square feet of commercial space, and extensive open space/ recreational amenities on former agricultural land in north central Fresno County – was deficient in its informational discussion of air quality impacts as they connect to adverse human health effects.  In doing so, the decision provides guidance in an area – the legal adequacy of an EIR’s discussion on a topic required by CEQA – that it held does not fit neatly within CEQA’s usual standard of review dichotomy, which provides for de novo review and exacting judicial scrutiny of alleged procedural errors (e.g., an EIR’s complete omission of a required topic area) and deferential substantial evidence review of an EIR’s or agency’s factual determinations and conclusions.

Continue Reading Connecting The CEQA Dots? Supreme Court Holds Friant Ranch Project EIR’s Air Quality Impacts Discussion Insufficiently Relates Pollutant Data To Specific Adverse Human Health Effects

The Federal Energy Regulatory Commission (“FERC”) issues licenses needed to construct and operate hydroelectric dams pursuant to the Federal Power Act (“FPA”; 16 U.S.C. § 791a, et seq).  Under long-standing law, and with the limited exception of state-issued water quality certifications, the FPA “occupies the field” of licensing a hydroelectric dam, and bars environmental review of the federal licensing procedure in state courts; this preemption is necessary because recognizing a “dual final authority” for such projects would be “unworkable.”  (First Iowa Hydro-Electric Cooperative v. Federal Power Com. (1946) 328 U.S. 152.)  States have limited authority under the Clean Water Act (33 U.S.C. § 1341) to impose stricter water quality conditions than are federally required on a FERC license, through the section 401 water quality certification process, but must act on a project applicant’s certification request within one year or certification is deemed waived.  (33 U.S.C. § 401(a)(1); Alcoa Power Generating Inc. v. FERC (D.C. Cir. 2011) 643 F.3d 963, 972.)  Further, any disputes concerning the Federal licensing process or the adequacy of “required studies” for that process (including “environmental studies” serving as the predicate for the state’s water quality certification conditions) are subject to FERC’s review.  (18 C.F.R. part 4, 34(i)(b)(vii) (2003).)

Continue Reading State Courts Lack Jurisdiction Over CEQA Challenge To Matters Within FERC’s Jurisdiction In Hydroelectric Dam Relicensure Process For Oroville Dam Facilities

In a published opinion filed December 17, 2018, the Third District Court of Appeal affirmed a judgment granting a writ setting aside El Dorado County’s approval of, and related Mitigated Negative Declaration (MND) for, construction of a Dollar General Store in the “quaint” downtown area of unincorporated Georgetown, a Gold Rush-era “hamlet” designated as a State Historical Landmark.  Georgetown Preservation Society v. County of El Dorado (Simoncre Abbie, LLC, Real Party in Interest) (2018) _____ Cal.App.5th _____.  The Court held lay public commentary on nontechnical issues concerning the project’s size and general appearance constituted substantial evidence supporting a fair argument that the project may have significant aesthetic impacts, and thus required an EIR, notwithstanding County’s findings that the project complied with its Historic Design Guide.  The Court also held County’s failure to make explicit findings in the record on alleged credibility and foundation issues precluded its “manufacturing after-the-fact findings” to justify its dismissal of the public comments on the ground that they did not constitute “substantial evidence.”

Continue Reading When CEQA Gets Ugly: Third District Holds Lay Public Opinion Supports Fair Argument That Project May Have Significant Aesthetic Effect Requiring EIR

“What’s in a name? That which we call a rose by any other name would smell as sweet;” – William Shakespeare, Romeo and Juliet, Act II, Scene II, ll. 47-48.

In a partially published 40-page opinion filed on November 26, 2018, the Sixth District Court of Appeal affirmed the trial court’s post-judgment order determining that respondents’ (City of San Juan Bautista and its city council) supplemental return complied with a previously issued peremptory writ and CEQA as directed.  But the opinion’s most valuable message to those toiling in the garden of the law – a profession where using the correct words is of paramount importance – is a simple Shakespearean one, to wit:  a final judgment by any other name is still a final judgment.  Alliance of Concerned Citizens Organized For Responsible Development v. City of San Juan Bautista (Harbhajan Dadwal, Real Party in Interest) (2018) ___ Cal.App.5th ___.

Continue Reading CEQA Plaintiff’s Failure To Appeal Incorrectly Labeled “Interlocutory” Decision Granting Peremptory Writ Barred Appellate Review Of Decision On Later Appeal From Post-Judgment Order Erroneously Labeled “Final Judgment”

In an opinion filed October 19, and later ordered published on November 15, 2018, the Third District Court of Appeal affirmed a judgment upholding Plumas County’s First comprehensive update of its 1984 general plan, and rejecting arguments that the update violated the California Timberland Productivity Act of 1982 (the “Timberland Act” or “Act”) and that the related EIR violated CEQA.  High Sierra Rural Alliance v. County of Plumas (2018) 29 Cal.App.5th 102.

Continue Reading Third District Holds Plumas County General Plan Update EIR Complies With CEQA And Update’s Compatible Use Determinations Do Not Violate Timberland Act

The Fourth District Court of Appeal (Div. 1) held in a published opinion filed October 24, 2018, that CEQA Guidelines § 15164 validly establishes an addendum process that is consistent with the CEQA statute, implementing and filling gaps in Public Resources Code § 21166.  The Court also held that new findings under Public Resources Code § 21081 addressing a project’s significant impacts are not required when a lead agency approves an addendum to an EIR.  Save Our Heritage Organisation v. City of San Diego (The Plaza de Panama Committee, Real Party in Interest) (2018) 28 Cal.App.5th 656.

Continue Reading Fourth District Holds Addendum Process Authorized By CEQA, No New Findings Required

A few recent developments and upcoming events in the CEQA world bear quick mention:

  • The BART Housing Bill:

Under AB 2923, BART now has limited land use regulation authority on its own lands near its stations. BART is required to adopt Transit-Oriented Development (TOD) standards for its lands by July 1, 2020, and its action in this regard is subject to CEQA review, with BART acting as the lead agency.  The new law declares the minimum TOD standards for this purpose (setting minimum density and height limits, and maximum parking limits) are set forth in BART’s 2017 TOD Guidelines.  Development projects which meet TOD zoning requirements and provide 30% affordable housing will qualify for streamlined, “by-right,” ministerial approval with no additional CEQA review.  The law also requires cities and counties to adopt zoning standards for BART-owned lands, conforming to BART’s adoption of TOD standards for height, density, parking, and FAR for eligible TOD projects, within 2 years of BART’s action, or by July 1, 2022 if BART fails to act.  The new law is intended to increase California’s housing supply and provide some relief from its housing crisis, and could enable BART to develop up to 20,000 residential units and 4.5 million square feet of office/commercial uses on 250 acres of BART-owned lands by 2040.  My partner Bryan Wenter’s excellent post on this new law can be found here.

Continue Reading 2018 CEQA Fall Update: Recent Legislative, Judicial, And Other Developments