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:

  • Union of Medical Marijuana Patients, Inc. v. City of San Diego, Case No. S238563. This case will address whether enactment of a zoning ordinance is categorically a “project” requiring CEQA review, and more specifically whether such a zoning enactment allowing medical marijuana cooperatives to operate in certain areas is the type of activity that may cause a reasonably foreseeable indirect physical change to the environment.  The Supreme Court granted review in this case on January 11, 2017, and it was fully briefed by the parties on October 19, 2017.  The Court sent out its oral argument notice on February 4, 2019, indicating that oral argument may be set in the next few months.
  • Protecting Our Water & Environmental Resources v. Stanislaus County, Case No. S251709. The Supreme Court granted review of the unpublished appellate decision in this case on November 14, 2018, and will address whether issuance of a well permit pursuant to state groundwater well-drilling standards is a discretionary decision subject to CEQA review, or a ministerial decision outside of CEQA’s scope.  The case is not yet fully briefed; the opening merits brief has been filed, and the answer brief on the merits is due after an extension on March 15, 2019.
  • Bottini v. City of San Diego, Case No. S252217. The Supreme Court granted review in this CEQA-related regulatory taking case was granted on December 19, 2018, and will essentially address whether the Landgate “substantially advances” test was abrogated and supplanted by the Penn Central test in California after the U.S. Supreme Court’s Lingle  (See my prior post of February 7, 2019, concerning the case here.)  The petitioner’s opening merits brief is due after an extension on March 25, 2019.
  • Finally, a March 6, 2019 petition for review has been filed by the losing petitioners and appellants in McCorkle Eastside Neighborhood Group, et al. v. City of St. Helena, et al. That published First Appellate District decision addressed a number of discretionary/ministerial issues that determine whether CEQA applies in the context of the City’s design review approval of a small, multi-family housing project allowed “by right” under its applicable zoning.  The Court of Appeal essentially held that because no use permit was required for the project in the applicable HR (High Density Residential) zoning district, and the City’s “discretion” was limited to non-environmental design review issues, CEQA did not apply and the Class 32 exemption adopted by the City (apparently out of an abundance of caution) was unnecessary.  My January 14, 2019 blog post on the Court of Appeal’s decision can be found here.

The lengthy petition for review quarrels with the City’s interpretation of its own Zoning Code, and attempts to make the case that a prefatory local Code provision addressing discretionary permits and approvals broadly authorizes the City to exercise discretionary authority to deny or modify projects authorized “by right” based on alleged environmental impacts in areas such as traffic, air quality, noise, and contamination, even where the City’s only discretionary authority over the project is through its limited design review process.  In my view, this argument conflates two very different types of local approvals – conditional use permits and design review.  It also ignores the deference routinely accorded local public agencies’ reasonable constructions of their own Code provisions, and more specifically the deference accorded to local agency determinations that their own ordinances and processes are ministerial.  (See, Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11, 23-24, citing CEQA Guidelines § 15268(a) and case authorities.)  It further ignores the CEQA principle that an agency’s discretion must enable it to meaningfully address environmental issues to trigger CEQA.

In seizing upon the City’s “belt and suspenders” adoption of a CEQA Class 32 exemption despite its position that CEQA didn’t apply at all, the petition also ignores cases holding that an agency’s conducting unnecessary CEQA review does not “estop” it from defending a CEQA challenge on the basis that CEQA review was not legally required at all.  (E.g., Del Cerro Mobile Estates v. City of Placentia (2011) 197 Cal.App.4th 173, 176-184 [city not estopped to invoke statutory CEQA exemption for railroad grade separation project that defeated litigation challenge to project EIR it had unnecessarily prepared]; Santa Barbara County Flower & Nursery Growers Assn. v. County of Santa Barbara (2004) 121 Cal.App.4th 864, 869 [county’s preparation of EIR did not waive reliance on express CEQA exemption for coastal commission certified regulatory program, which exempted LCP amendments from CEQA review and EIR requirements].)  Further, while the CEQA Guidelines provide that categorical exemptions “should be applied only where a project is not ministerial under a public agency’s statutes and ordinances,” they also point out that “[t]he inclusion of activities which may be ministerial within the classes [of categorical exemptions] . . . shall not be construed as a finding by the Secretary for Resources that such an activity is discretionary.”  (CEQA Guidelines, § 15300.1.)

In any event, for these and other reasons, I’d be very surprised if the Supreme Court sees anything review-worthy about the Court of Appeal’s decision here.


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.