In a published opinion filed August 14, 2023, the Third District Court of Appeal reversed a judgment that denied a petition for writ of mandate challenging the State Department of Public Health’s (Department) approval of Real Party in Interest Harm Reduction Coalition of Santa Cruz County’s (real party) needle exchange program. Grant Park Neighborhood Association Advocates v. Department of Public Health, et al. (2023) 94 Cal.App.5th 478. In ordering a writ to issue to set aside the approval, the Court of Appeal agreed with petitioner and appellant Grant Park’s first three arguments based on the Department’s prejudicial violations of Health and Safety Code § 121349’s required procedures; it declined to reach appellant’s separate CEQA argument seeking the same relief, however, since it had already granted all requested relief under the other statutory provisions. However – and as most relevant to this blog – the Court also noted that following the trial court’s judgment the Legislature enacted a 2021 statutory amendment exempting the Department’s approval of needle exchange operations from CEQA.
While the opinion is thus of limited significance in the CEQA realm, land use practitioners may find of interest its discussion of the significant distinction in this context between the statutory requirement to “confer” with other agencies regarding a proposed project and the distinct statutory requirements to provide notice and a public comment period before acting. Relatedly, the Court’s discussion of situational deference to agency interpretations of law is illuminating; it distinguishes the high level of deference owed to a local agency’s interpretation of its own land use policies from the lesser level of deference owed to state agencies (such as the Department) in their interpretations of statutory laws like the Health and Safety Code provision at issue.
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.