In a 74-page opinion filed February 24, and later ordered published on March 17, 2020, the Second District Court of Appeal (Division 7) affirmed judgments (granting the writ petition and awarding fees) in coordinated appeals stemming from a CEQA action successfully challenging the City of Agoura Hills’ (City) project approvals and mitigated negative declaration (MND) for a mixed use development project on an undeveloped 8.2 acre parcel.  Save the Agoura Cornell Knoll v. City of Agoura Hills (Doron Gelfand, et al., Real Parties in Interest) (2020) ___ Cal.App.5th ___.  The Court rejected the City’s and Real Parties’ procedural arguments that Petitioners and Respondents Save the Agoura Cornell Knoll (STACK) and California Native Plant Society (CNPS) had failed to exhaust administrative remedies, and that their claims were barred by lack of standing and the statute of limitations; on the merits of the CEQA claim, it held that substantial evidence in the record supported a fair argument that even as mitigated the project may have significant impacts on cultural resources (i.e., a Chumash Native American archaeological site), three sensitive plant species, native oak trees, and aesthetic resources, and that an EIR was therefore required; and it further held the trial court properly granted writ relief based on the City’s violation of its own Oak Tree Ordinance by approving a project that would concededly remove 35 to 36 percent of the site’s oak tree canopy when the Ordinance prohibited removal of more than 10 percent.  Finally, the Court held that the trial court properly awarded Petitioners STACK and CNPS $142,148 in attorneys’ fees under Code of Civil Procedure § 1021.5, made payable 50% by City and 50% by Real Parties, notwithstanding that Petitioners furnished their first amended petition to the Attorney General (AG) beyond the 10-day statutory period for doing so.

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In an opinion filed September 6, and later ordered published on October 7, 2019, the First District Court of Appeal (Div. 4) affirmed the trial court’s judgment denying plaintiff groups’ writ petition challenging Sonoma County’s use permit and related mitigated negative declaration (MND) for a winery project in the County’s rural Knights Valley area.  Maacama Watershed Alliance, et al v. County of Sonoma, et al. (James Bailey, Knights Bridge Vineyards, LLC, Real Parties in Interest) (2019) 40 Cal.App.5th 1007.

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Introduction And Overview

On August 19, 2019, the California Supreme Court issued its unanimous 38-page opinion, authored by Chief Justice Cantil-Sakauye, in the CEQA “project definition” case we’ve been tracking with interest.  Union of Medical Marijuana Patients, Inc. v. City of San Diego (California Coastal Commission, Real Party in Interest) (2019) 7 Cal.5th 1171, Case No. S238563.  As anticipated based on the high court’s questioning and remarks at oral argument (see “Supreme Court Hears Oral Argument in CEQA Project Definition Case,” posted June 6, 2019), it reversed the Fourth District Court of Appeal’s decision that the City’s approval of the medical marijuana dispensary ordinance at issue was not a CEQA “project”; accordingly, it held that the City was required to treat it as such and “proceed to the next steps of the CEQA analysis.”


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In an opinion filed June 28, and later ordered modified and published on July 27, 2018, the Second District Court of Appeal (Div. 6) affirmed the trial court’s $21,160.46 cost award in favor of a prevailing party public agency for costs associated with preparing the administrative record in a CEQA case, despite petitioner’s election to prepare the record, where the petitioner had unreasonably delayed and the agency acted reasonably.  LandWatch San Luis Obispo County v. Cambria Community Services District (2018) 25 Cal.App.5th 638.

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In a published opinion filed June 13, 2018, the Second District Court of Appeal (Div. 4) affirmed a judgment denying a writ of mandate and declaratory relief in an action challenging the California State Lands Commission’s (“Commission”) determination that CEQA Guidelines § 15301’s categorical exemption for “existing facilities” applied to its renewal of PG&E’s leases of state-owned lands needed to operate the Diablo Canyon nuclear power plant until federal licensures expire in 2025. World Business Academy v. California State Lands Commission (Pacific Gas & Electric Company, Real Party in Interest) (2018) 24 Cal.App.5th 476.  The Court rejected petitioner/appellant World Business Academy’s arguments that the consolidated lease replacement, which maintains the status quo at the plant until 2025, did not fall within the exemption, or was subject to the “unusual circumstances” exception, and also rejected arguments that it violated the public trust doctrine.

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In a published opinion filed March 15, 2018, the Fourth District Court of Appeal (Division One) affirmed the trial court’s judgment denying a writ petition and complaint challenging the City of San Diego’s approvals of a wireless telecommunications facility to be constructed by real party Verizon Wireless in Ridgewood Neighborhood Park, a dedicated park.  Don’t Cell Our Parks v. City of San Diego (Verizon Wireless, Real Party in Interest) (2018) 21 Cal.App.5th 338.

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A fundamental prerequisite to a viable lawsuit is a plaintiff possessing standing to bring it, and in writ of mandate proceedings that generally means a person or entity actually possessing a beneficial interest in the legal relief being sought.  Nonetheless, CEQA’s broad statutory standing provisions, the “public interest exception” to beneficial interest standing, constitutional associational privacy claims, and the general unavailability of civil discovery (due to the general irrelevance of extra-record evidence) in administrative mandamus actions have all conspired to allow CEQA litigation standing abuses to become a large – and largely unchecked – problem.  Indeed, I have previously analyzed and written about this particular CEQA litigation abuse in depth.  (See, e.g., Standing Against Environmental Injustice: Some Thoughts On Facing The Need For CEQA Litigation Reform,” by Arthur F. Coon, posted July 18, 2017.)  I am thus happy to be able to report that, in an opinion filed November 28, and ordered published on December 19, 2017, the Fourth District Court of Appeal has now done something about it.  Specifically, it properly upheld the use of civil discovery directed to the issue of a plaintiff organization’s standing in a CEQA writ proceeding, and also affirmed the trial court’s judgment of dismissal after granting a terminating sanction for plaintiff’s discovery abuse in attempting to thwart such discovery.  This important new decision is Creed-21 v. City of Wildomar (Walmart Real Estate Business Trust, Real Party in Interest) (4th Dist., Div. 2, 2017) 18 Cal.App.5th 690.

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When a lead agency finds a project approval to be categorically exempt from CEQA, this determination at the initial step of CEQA’s multi-tiered process necessarily includes an implied finding that no exceptions to the categorical exemption are applicable.  A party challenging an agency’s categorical exemption determination on the basis that the “unusual circumstances” exception applies generally has the burden to show both (1) unusual circumstances (i.e., the project has some feature distinguishing it from others in the exempt class, such as size or location), and (2) “a reasonable possibility of a significant effect [on the environment] due to [those] unusual circumstance[s].”  (Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1105, 1115.)

But how does a court review an “unusual circumstances” challenge to a categorical exemption where the agency has made no express findings on these elements and must thus rely on implied findings to uphold its determination?  In a published opinion filed September 18, 2017, the First District Court of Appeal answered this important question in the course of affirming a judgment denying a writ petition that challenged the City of South San Francisco’s (City) conditional-use permit (CUP) for conversion of an office building to a Planned Parenthood medical clinic.  Respect Life South San Francisco v. City of South San Francisco (Planned Parenthood Mar Monte, Inc., Real Party In Interest) (1st Dist., Div. 1, 2017) 15 Cal.App.5th 449.  While the City’s categorical exemption in this case was upheld based on an implied finding, the opinion’s most important takeaway for local agencies (and project proponents) is that reliance on such a finding presents far more litigation risk than if appropriate express findings are made.


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In a published decision filed August 8, 2017, the Fourth District Court of Appeal affirmed the trial Court’s judgment dismissing a CEQA action brought by two individuals (“Appellants”) against the Mt. San Jacinto Community College District (“District”).  Bridges v. Mt. San Jacinto Community College District (Riverside County Regional Park & Open- Space District, Real Party in Interest) (4th Dist. 2017) 14 Cal.App.5th 104.  Appellants challenged the District’s entry into a purchase agreement to buy from a regional park district a plot of vacant land for potential future use as a new campus, alleging this action violated CEQA because the District had not yet prepared an EIR for the potential new campus project.  (The District was in the process of preparing an EIR, during the pendency of other litigation over an earlier option agreement on the property, but it “paused” that process due to the other litigation while determining it would complete the EIR before entering into escrow on the property.)  Appellants also claimed the District violated CEQA by failing to adopt local CEQA implementing guidelines.

The Court of Appeal held Appellants failed to exhaust their administrative remedies prior to filing suit or to demonstrate any excuse for not doing so; alternatively, it held that their claims lacked substantive merit.


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In an opinion filed March 23, and belatedly modified and ordered published on May 25, 2017, the First District Court of Appeal reversed the trial court’s dismissal of a plaintiff environmental group’s (“Friends”) CEQA action against a local air quality district (“District”).  (Friends of Outlet Creek v. Mendocino County Air Quality Management District (Grist Creek Aggregates, LLC, et al., Real Parties in Interest) (1st Dist., Div. 1, 2017) 11 Cal.App.5th 1235.)  Friends’ action challenged District’s 2015 issuance of an “Authority to Construct” to Real Party Grist Creek for asphalt plant-operations on a site used, at various times since 1972, for aggregate and asphalt production.  The trial court had sustained District’s and Grist Creek’s demurrer on the ground that CEQA relief was unavailable against a local air district in this context and that Friends’ exclusive remedy was an action under Health and Safety Code § 40864.

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