My October 31 presentation with David Ivester for the Bay Planning Coalition on recent CEQA developments brought home the fact that while there has been only partial and incremental legislative reform (in the form of SB 743), the appellate Courts have remained very active, publishing roughly 30 decisions over the past year. I concur with David that legislative reform in 2014 (an election year) is unlikely, so it appears we will have to continue to look to the judiciary as the principal agent for change – for better or for worse. David’s opening anecdote about his conversation with an intelligent, non-lawyer friend underscoring the need for CEQA reform was compelling – something just seems wrong if, after a legion of environmental professionals (including agency staff, planners, environmental consultants, and legal counsel) has thoroughly vetted a development project and its environmental review, it still stands only a 50% chance of prevailing if challenged in Court.
Appropriate for Halloween, the cases have been a mixed bag. The Supreme Court helped clarify the existing/future baseline issue (Neighbors For Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439), and promises to provide further clarity on the standard of review for categorical exemptions and their exceptions (Berkeley Hillside Preservation, et al. v. City of Berkeley, et al., Supreme Ct. Case No. S201116), and the nature of discretionary action subject to CEQA. (Tuolumne Jobs and Small Business Alliance v. Superior Court, Supreme Ct. Case No. S207173). However, it disappointingly declined to depublish a Fifth District decision that created a split in authority and significantly weakened the non-waiver protection for privileged communications shared between lead agency and real party counsel to further their common interest in enhancing the legal defensibility of CEQA documents. (Citizens For Ceres v. Superior Court of Stanislaus County, et al. (5th Dist. 2013) 217 Cal.App.4th 889.)
Some important principles and issues of first impression were decided. (Masonite Corporation v. County of Mendocino (1st Dist. 2013) 218 Cal.App.4th 230 [agricultural conservation easements are legally-feasible mitigation for direct loss of prime farmland]; Mt. Shasta Bioregional Ecology Center v. County of Siskiyou (3d Dist. 2012) 210 Cal.App.4th 184 [“reasonable range” of alternatives examined in EIR may include only “no project” alternative if all others infeasible].) Pointed and helpful reminders of the judicial deference owed to an EIR’s findings and conclusions, and of CEQA plaintiffs’ burden to show prejudicial error, were given. (North Coast Rivers Alliance, et al. v. Marin Municipal Water Dist., etc. (1st Dist. 2013) 216 Cal.App.4th 614; Save Panoche Valley v. San Benito County (6th Dist. 2013) 217 Cal.App.4th 503; Save Cuyama Valley v. County of Santa Barbara (2d Dist. 2013) 213 Cal.App.4th 1059; Mt. Shasta Bioregional Ecology Center, supra.)
Practice tips for lawyers, consultants and public agencies abounded. (E.g., Friends of Oroville v. City of Oroville (3d Dist. 2013) 219 Cal.App.4th 832 [quantify your infill project’s GHG emissions]; Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist. (4th Dist. 2013) 215 Cal.App.4th 1013 [analyze any secondary environmental impacts from project’s parking shortage]; May v. Milpitas (6th Dist. 2013) 217 Cal.App.4th 1307 [be aware of CEQA statutes of limitations lurking outside the Public Resources Code]; Coalition for Clean Air v. City of Visalia (2012) 209 Cal.App.4th 408 [don’t prematurely file your NOE or NOD if you want it to effectively trigger the shortest limitations period]; San Joaquin Raptor Rescue Center v. County of Merced (5th Dist. 2013) 216 Cal.App.4th 1167 [separately agendize the CEQA determination as an item of business under the Brown Act].) Reasonable jurisprudence on “limited writ” CEQA remedies emerged (Golden Gate Land Holdings, LLC v. East Bay Regional Park Dist.(1st Dist.) 215 Cal.App.4th 353; Preserve Wild Santee v. City of Santee (4th Dist. 2012) 210 Cal.App.4th 260), sometimes in ironic fashion. (Poet, LLC v. California Air Resources Board (5th Dist. 2013) 218 Cal.App.4th 681 [while CARB violated CEQA in several respects in adopting Low Carbon Fuel Standards regulations intended to reduce GHG emissions, Court allowed regulations to remain operative and enforceable pending CEQA compliance even while “voiding” decision adopting them].)
And, the usual inconsistencies that are the “spice” of CEQA practice also prevailed. (Compare, Alliance for the Protection of the Auburn Community v. County of Placer, et al. (3d Dist. 2013) 215 Cal.App.4th 25 [missing CEQA statute of limitations is not excusable neglect], with Comunidad Enaccicon v. L.A. City Council (2d Dist. 2013) 219 Cal.App.4th 1116 [trial court abused its discretion by denying discretionary relief under CCP § 473 for counsel’s failure to comply with CEQA’s mandatory request to file written request for hearing within 90 days of filing petition due to “excusable” failure to calendar the deadline].)
All in all, it’s been an interesting year.
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