While the COVID-19 pandemic made 2020 a year most would prefer to keep in the rear view mirror, the courts kept fairly busy handing down precedents that hopefully provided us all with a better road map for navigating CEQA. What follows is not a comprehensive review, but more of a brief trip down memory lane to review a “baker’s dozen” of last year’s case law highlights.
- The Fifth District Court of Appeal found numerous defects in the EIR for Kern County’s ministerial ordinance for oil and gas well permitting. These included improper deferral of mitigation for water supply impacts, failure to adequately mitigate loss of farmland, and inadequate noise impact analysis. In conflict with other published precedent and the CEQA Guidelines, the Court held as a matter of law that agricultural conservation easements (ACEs) cannot mitigate the direct impacts of farmland conversion because they do not create new farmland to replace that which is lost. The Court also held noise impacts can’t be analyzed solely against an absolute numerical limit without considering increases over ambient levels in the various affected settings. The case is King and Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814, and my 3/3/20 post on it can be found here.
- The Third District Court of Appeal reaffirmed the general CEQA principle that an EIR must assume the project proposed for approval will actually be built and analyze that project. Thus, it upheld the EIR for a large master planned community project and held that it was not deficient for failing to analyze the project without the planned university component that plaintiffs argued was unlikely to be built. The case is Environmental Council of Sacramento v. County of Sacramento (2020) 45 Cal.App.5th 1020, and my 3/6/20 post on it can be found here.
- The Second District Court of Appeal held CCP § 1021.5 private attorney general fees were properly denied to a neighbor group whose CEQA challenge to a negative declaration forced a real party in interest to abandon his plans for a modest single family residence “dream home” because he couldn’t afford to defend the litigation. The case holding that no important CEQA right was vindicated in those circumstances is Canyon Crest Conservancy v. County of Los Angeles (2020) 46 Cal.App.5th 398, and my 3/23/20 post covering it can be found here.
- In yet another case underscoring the vulnerability of mitigated negative declarations (MNDs) in the face of dedicated opposition, the Second District affirmed a judgment invalidating the project approvals and MND for a mixed use development, rejecting exhaustion, standing, and statute of limitations defenses, and holding plaintiffs made a fair argument that the project may have significant cultural resources, sensitive plant, oak tree and aesthetic impacts, thus requiring an EIR. The case is Save the Agoura Cornell Knoll v. City of Agoura Hills (2020) 46 Cal.App.5th 665, and my 3/27/20 post on it can be found here.
- The Second District reaffirmed the principle that CEQA’s short statutes of limitations are triggered by the lead agency’s filing of the prescribed notice and operate independently of the merits, or lack thereof, of the claimed CEQA violations. Thus, the filing of a facially valid notice of determination (NOD) or notice of exemption (NOE) triggers the corresponding short limitations period even where the underlying CEQA determinations may be flawed. The case is Coalition for an Equitable Westlake/MacArthur Park v. City of Los Angeles (2020) 47 Cal.App.5th 368, and my 4/9/20 post on it can be found here.
- The Second District reaffirmed, in the context of an oil refinery modification project, that CEQA requires deference to an agency’s chosen baseline – which it observed is an artificial human construct based on what one chooses to measure – when it is supported by substantial evidence. It also held that the exhaustion doctrine requires raising the “exact issue” and that an EIR is not faulty for omitting immaterial information. The case is Communities for a Better Environment v. South Coast Air Quality Management District (2020) 47 Cal.App.5th 588, and my 4/21/20 post on it can be found here.
- The Sixth District Court of Appeal held that the City of San Jose’s seeking and acceptance of a Streambed Alteration Agreement (SAA) from the California Department of Fish and Wildlife (CDFW) to implement a pedestrian bridge project involving the demolition of an historic railroad trestle was not a new discretionary project approval triggering subsequent CEQA review obligations. Plaintiff sued only the City, but the SAA was an approval granted by non-party responsible agency CDFW, not the City. The case is Willow Glen Trestle Conservancy v. City of San Jose (2020) 49 Cal.App.5th 127, and my 5/22/20 post on it can be found here.
- The Fourth District Court of Appeal again shot down San Diego County’s attempt to adopt a viable climate action plan due to significant CEQA violations, including the County’s improper authorization to use purchases of non-verifiable, out-of-county GHG offsets to mitigate for up to 100% of the in-county GHG emissions requiring mitigation. The case is Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467, and my 6/29/20 post on it can be found here.
- The First District Court of Appeal held UC Berkeley’s decision to increase student enrollment above the maximum projected level analyzed in its Long Range Development Plan EIR was a non-exempt project requiring CEQA review and mitigation, despite the informal nature of the decision and lack of any accompanying approval of a physical development project. The case is Save Berkeley’s Neighborhoods v. The Regents of the University of California (2020) 51 Cal.App.5th 226, and my 7/2/20 post on it can be found here.
- In a case believed by many lead agencies to impose onerous and expensive burdens on them in terms of record-keeping obligations, the Fourth District Court of Appeal held that CEQA’s “mandatory” and “broadly inclusive” administrative record statute requires lead agencies to maintain and not destroy documents within its scope, notwithstanding any allegedly contrary records retention policy. The case is Golden Door Properties, LLC v. Superior Court (2020) 52 Cal.App.5th 837, and my 8/5/20 and 8/26/20 posts on it can be found here and here.
- Illustrating that the applicability of CEQA to a specific project approval granted under a particular ordinance or statutory scheme does not necessarily depend on an “all-or-nothing” characterization of the scheme as a whole, the California Supreme Court addressed the discretionary vs. ministerial approval distinction that determines CEQA’s applicability. It unanimously held that a county’s state-law based well permitting standards were neither categorically ministerial nor categorically discretionary in nature, and that whether CEQA-triggering discretion exists must be determined on a case-by-case basis in light of the agency’s legal controls and authority that are applicable to the particular project approval application at issue. The case is Protecting Our Water and Environmental Resources v. County of Stanislaus (2020) 10 Cal.5th 479. Miller Starr Regalia represented the League of California Cities as an amicus curiae in this case, and my 8/28/20 post on the high court’s opinion can be found here.
- The Third District Court of Appeal dismissed a CEQA case appeal as moot where the plaintiff failed to timely seek or obtain a preliminary injunction to preserve the status quo ante, and project construction was completed before the trial on the merits below. The case is Parkford Owners for a Better Community v. County of Placer (2020) 54 Cal.App.5th 714, and my 9/21/20 post on it can be found here.
- The First District opened Pandora’s box in its published decision involving the issue of whether responsible agencies can decline to fully participate in the lead agency’s CEQA process, and then later, as a result of subsequent environmental review and proceedings, impose substantial additional mitigation conditions and requirements on a project beyond those formulated and found sufficient in the unchallenged certified Final EIR and imposed by the lead agency. The Court held that such a second bite at the CEQA apple by a responsible agency was permissible, at least on the unique and unusual facts of the case before it, under the responsible agency’s “independent” statutory authority and CEQA’s “savings clause.” The case is Santa Clara Valley Water District v. San Francisco Bay Regional Water Quality Control Board (2020) ____ Cal.App.5th ____, and my 1/6/21 post on it can be found here.
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Hopefully, this brief review hitting the “wave tops” of last year’s CEQA cases was helpful, and not too traumatic; we can now look forward to what promises to be another interesting year of CEQA developments.
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 fifty 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 www.msrlegal.com.