On July 13, 2022, the California Supreme Court denied numerous depublication requests with respect to, and declined to review on its own motion, the First District Court of Appeal’s decision in Save the Hill Group v. City of Livermore (2022) 76 Cal.App.5th 1092, S. Ct. Case No. S274754; Ct. App. Case No. A161573.  My May 26, 2022 post on the League of Cities’ and CSAC’s depublication requests, which were shortly thereafter followed by further depublication requests by Respondent City of Livermore and the California Building Industry Association, can be found here, and my April 4, 2022 post analyzing the Court of Appeal’s opinion which can be found here.

Since the appellate decision remains the published “law of the land,” only time will tell whether it will have the adverse effects on housing project development feared by the depublication requestors.  My own view remains (as stated in the concluding section of my initial post) that the Court of Appeal’s holding as to the inadequacy of the EIR’s “no project” alternative analysis was largely driven by the case’s peculiar facts regarding what realistically might happen to the project site were the project not to proceed, including the site’s unique habitat value for special status species and potentially available acquisition funding sources, as well as the decisionmaking body’s strongly expressed interest in exploring a feasible acquisition/preservation alternative to the project if one existed.  As such, the case should (hopefully) be readily distinguishable from other, more typical, housing development project scenarios not presenting such unique facts where the project is consistent with existing zoning.  That being said, and CEQA litigation being what it is, it would nonetheless behoove EIR preparers to look closely at potentially available funding sources for acquisition and preservation and to include discussion of any such potential options in the “no project” alternative analysis.


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