In Golden Gate Land Holdings LLC v. East Bay Regional Park District (4/12/13 1st Dist., Div. 5) 215 Cal.App.4th 353, the First District Court of Appeal explored the scope and proper application of CEQA’s remedies provision – Public Resources Code § 21168.9 – in the context of an eminent domain action filed before completion of necessary environmental review for the condemning agency’s project.  In a partially-published opinion, the Court affirmed a judgment vacating the East Bay Regional Park District’s (“District”) CEQA exemption finding, and ordering it to prepare an EIR for a project to acquire and construct a segment of the Bay Trail on eight acres of shoreline property, while allowing the District’s eminent domain action to proceed.

The cases’ relevant facts are straightforward.  After a license for public use expired and voluntary acquisition efforts failed, the District sought to condemn a portion of the 140-acre Golden Gate Fields racetrack site to construct a shoreline park and segment of the San Francisco Bay Trail, a planned 400-mile recreational corridor that is intended to ultimately encircle San Francisco and San Pablo Bays and provide a network of hiking and biking trails linking 9 counties and 47 cities.  The District found its action exempt from CEQA under Guidelines § 15325, as an acquisition of land to protect open space and promote public access, but condemnee Golden Gate Land Holdings LLC (Golden Gate) challenged District’s CEQA compliance and its Resolution of Necessity by way of a mandate action seeking to vacate the Resolution.  The District’s subsequently-filed eminent domain action was ordered to trail the mandate action.

The trial court found the District had committed to a definite course of action in regard to  — and thus “approved” — a project to both acquire the property and construct the park/trail segment, and further that its reliance on a CEQA exemption was erroneous.  However, it also rejected Golden Gate’s challenge to the District’s Resolution of Necessity, finding the law did not mandate completion of the required CEQA review prior to initiation of an eminent domain action.  It thus ordered the District to complete an appropriate CEQA review of the project, and that it “must not actually acquire the property without first completing compliance with CEQA.”

In affirming the judgment, the Court of Appeal reached the following conclusions:

  • The appeal was not moot despite the District’s subsequent adoption of resolutions certifying an EIR for the project and superseding and replacing its prior Resolution of Necessity.  Golden Gate’s argument was directed to the validity of the limited remedy ordered by the trial court, not whether the writ had been complied with.  In essence, Golden Gate argued that any EIR completed after approval of the Resolution of Necessity would be unlawful because the trial court was required to set aside that Resolution as a result of the CEQA violation it found, rather than leaving it in place and allowing District to prepare an “after-the-fact” EIR for the already-approved project.
  • CEQA’s remedies provision, Public Resources Code § 21168.9, contains key language allowing the trial court to fashion a “limited writ remedy” under appropriate circumstances.  Such language authorizes a mandate voiding a public agency’s “determination, finding, or decision … in whole or in part” (Pub. Resources Code, § 21168.9(a)(1)); directs that any remedial order “shall include only those mandates which are necessary to achieve compliance with [CEQA] and only those specific project activities in noncompliance with [CEQA]” (§ 21168.9(b)); and further directs that “the order shall be [so] limited” if the court finds (1) the noncomplying portion of a determination, decision or finding or the “specific project activity or activities are severable, (2) severance will not prejudice complete and full compliance with [CEQA], and (3) the court has not found the remainder of the project to be in noncompliance with [CEQA].”
  • A challenge to a “limited writ remedy” invokes two issues:  (1) did the trial court properly interpret § 21168.9 to authorize the remedy?; and (2) did the trial court properly exercise its equitable powers in using the remedy in the particular case?  The first issue is a question of law reviewed de novo; the second is reviewed for abuse of discretion, i.e., in light of the law and all relevant circumstances, did the trial court’s ruling exceed the bounds of reason?
  • After reviewing the trial court’s analysis of the relevant authorities, the Court of Appeal agreed with its conclusion that the legislature has not precluded commencement of eminent domain proceedings prior to CEQA compliance.  CEQA’s concern with physical changes in the environment differs from eminent domain’s concern with ownership of property, and because condemnation without plans to physically change the property would not require an EIR, a bright line rule as Petitioner Golden Gate advocated is inappropriate.
  • CEQA Guidelines § 15004(a), (b)(2)(A) allow an agency to enter into land acquisition agreements when future use of the site is conditioned on CEQA compliance; by parity of reasoning, an agency can presumably initiate condemnation proceedings with actual acquisition conditioned on future CEQA compliance.  Further, it is significant that Code of Civil Procedure § 1268.510 allows an agency to abandon the proposed acquisition at any time before it actually occurs.
  • Here, the trial court properly considered Public Resources Code § 21168.9 and its factors, and its remedy was consistent with the timing of CEQA review envisioned by Guidelines § 15004(b)(2)(A).  The Resolution of Necessity and prosecution of the eminent domain action were severable from actual purchase of the property and construction of the park and trail segment, and, under the circumstances, would not prejudice or limit the District’s obligation to fully comply with CEQA, including consideration of project alternatives.
  • The key issue in the case, according to the Court of Appeal, was thus not whether to prepare a project EIR, but when to do so.  By its subsequent actions, the District conceded as much.  Public Resources Code § 21168.9 gave the trial court the flexibility to consider equitable principles and tailor its remedy to permit part of the “project activities” – i.e., the eminent domain action – to go forward while the District prepared an EIR to comply with its CEQA obligations.  Allowing the eminent domain action to proceed “was a severable project activity that would not result in an adverse change to the physical environment and would not prejudice CEQA compliance, so long as the District stopped short of actual acquisition.”
  • Contrary to Golden Gate’s argument, “section 21168.9 contains no textual requirement that [required] environmental review be completed before consideration of the severance remedy.”  Moreover, “the plain language of the statute” shows that in authorizing a severance remedy, “the Legislature chose to focus on ‘project activities,’ rather than the ‘project’ as a whole.”
  • The Court of Appeal also emphasized that “the facts of the case are unique” and involved “a project for open space preservation and recreational improvements.”  This distinguished the case from other published decisions where the equities did not favor allowing construction or condemnation proceedings to go forward pending preparation of an adequate EIR.

In affirming the judgment, the Court of Appeal emphasized there was no evidence indicating the District by continuing its eminent domain proceedings would be prejudiced in its consideration of project mitigation measures or alternatives, that physical changes to the environment would occur without CEQA review, or that sums already expended by the District in mitigating the eminent domain proceedings would prove “a strong incentive to ignore environmental concerns” – particularly in light of the trial court’s order that no acquisition could occur until CEQA review was complete.  Golden Gate Land Holdings LLC illustrates that Public Resources Code § 21168.9 provides enough flexibility to allow an equitable severance remedy for CEQA violations via a “limited writ” – at least in unique and limited circumstances.  Such circumstances are rare, however, and certainly shouldn’t be counted on to save public agencies from their obligation to scrupulously and fully comply with CEQA before approving a project.


Questions?  Please contact Arthur F. Coon of Miller Starr Regalia.  Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for over forty-five years.  For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, a 12-volume treatise on California real estate law.  “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state.  The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, construction, management, title insurance, environmental law, and redevelopment and land use.  For more information, visit