On February 15, 2017, the California Supreme Court denied numerous requests for depublication and declined to review on its own motion the decision in East Sacramento Partnership for a Livable City v. City of Sacramento (3d Dist. 2016) 5 Cal.App. 5th 281.  In relevant (and controversial) part, that decision held that the EIR for a large residential infill project violated CEQA by basing its less-than-significant traffic impact finding on the project’s compliance with an applicable traffic level of service (LOS) standard in the City’s general plan; my blog post analyzing the Court of Appeal’s published opinion in detail can be found here.

Obviously concerned about the lack of deference afforded to the City’s choice of threshold of significance and, perhaps, with the Court’s potentially confusing published CEQA analysis of a LOS traffic impact threshold of significance that will very soon go the way of the dinosaurs (after OPR officially adopts its new CEQA Guidelines later this year declaring that LOS degradation is not a significant transportation impact under CEQA and requiring a VMT (vehicle miles travelled) analysis instead), numerous agencies and groups asked the Supreme Court to depublish the decision.

Among the heavy-hitting depublication requesters were: the California Infill Builders Federation, League of California Cities, Metropolitan Water District of Southern California, Sacramento Council of Governments, Metropolitan Transportation Commission, San Diego Association of Governments, Southern California Association of Governments, California Association of Governments, Governor’s Office of Planning and Research, California Building Industry Association, California Business Properties Association, Building Industry Legal Defense Foundation, and several law firms known for representing public agencies.

But alas, the efforts were in vain, and the decision will remain published precedent.  Perhaps the depublication requesters can take some comfort in the prospect that some objectionable parts of the decision – specifically, those parts dealing with CEQA traffic impacts as measured by LOS – likely have a short “shelf life” and will in the not-too-distant future become obsolete.


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 more than fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 4th, 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, financing, common interest development, construction, management, eminent domain and inverse condemnation, title insurance, environmental law and land use. For more information, visit www.msrlegal.com.