Save Lafayette Trees Litigation Update: The Beat Goes On
We last posted on this decision (currently published as Save Lafayette Trees v. City of Lafayette (Pacific Gas and Electric Company, Real Party in Interest) (1st Dist. 2019) 32 Cal.App.5th 148) and its significant CEQA/Planning and Zoning Law statute of limitations holdings in my February 26, 2019 post, which can be found here. In that post, it was noted (among other things) that the Court’s opinion after rehearing was issued on February 8, 2019, following the January 29, 2019 bankruptcy filing of real party PG&E, but that it did not address the effect (if any) of the automatic stay.
On May 9, 2019, the Court on Appeal issued an order stating:
Appellant’s unopposed motion to recall the remittitur issued April 11, 2019 is granted in view of the bankruptcy petitions filed by Real Party in Interest Pacific Gas and Electric Company on January 19, 2019. (Cal. Rules of Court, rule 8.272(c)(2); see Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 165-166.)
While the California Rules of Court provide that “[a]n order recalling a remittitur after a decision by opinion does not supersede the opinion or affect its publication status” (Cal. Rules of Ct., rule 8.272 (c)(3)), federal bankruptcy law holds that the filing of a bankruptcy petition effects an automatic stay of litigation as of the petition’s filing date, and that judicial and other actions taken in violation of the automatic stay are void (and not merely voidable). (See 11 U.S.C. § 362(a); In re Schwartz (9th Cir. 1992) 954 F.2d 569.)
Since the appellants’ motion to recall the remittitur was expressly based on their desire to file a petition for review with the Supreme Court which is currently precluded by the automatic stay, it appears that the final chapter in this litigation may not yet have been written. Stay tuned ….
Amici Curiae “POWER Up” In Supreme Court Well Permit CEQA Case
The pending Supreme Court case of Protecting Our Water & Environmental Resources v. Stanislaus County, Case No. S251709 (“POWER”) was fully briefed by the parties as of April 11, 2019, and the deadline for submission of amicus curiae briefs was May 13, 2019. The case essentially presents the issue whether the County’s well construction permitting ordinance, which incorporates technical state standards for construction and siting of wells aimed solely at protecting water quality, establishes a ministerial permitting scheme (exempt from CEQA) or a discretionary one (subject to CEQA).
The significance of the fundamental issues involved – which define the very scope and reach of CEQA – are reflected in the considerable interest that the case has generated. Weighing in so far with amicus curiae brief applications to file briefs in support of the County’s position that its own scheme is ministerial are amici curiae including the Association of California Water Agencies, California Special Districts Association, League of California Cities, California State Association of Counties, California Building Industry Association, California Association of Realtors, and the County of San Luis Obispo. On the other side, amici curiae applicants proposing briefs in support of the position of plaintiffs/appellants include the California Water Impact Network, California Wildlife Foundation, Landwater Monterey County, and North Coast River Alliance.
CEQA Developments Blog Milestone
Last month, about 7-1/2 years since its inception, Miller Starr Regalia’s CEQA Developments blog posted its 300th post. As the blog’s principal author, I can say that this project has proven to be a truly educational and rewarding endeavor (for me), and I sincerely hope that it has been (and will continue to be) a useful reference and research tool for CEQA professionals and practitioners. Thanks much to all who read and follow the blog!
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.