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) ___ Cal.App.5th _____.

Continue Reading Second District Affirms Order Awarding CEQA Record Preparation Costs to Agency That Took Over Process After Unreasonable Delays, Notwithstanding Petitioner’s Election to Prepare Record

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) ____ Cal.App.5th _____.  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.

Continue Reading Second District Holds CEQA’s Existing Facilities Categorical Exemption Applies To State Lands Commission/PG&E Lease Extension For Operation Of California’s Last Active Nuclear Power Plant Until 2025 Closure

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.

Continue Reading Fourth District Upholds San Diego’s CEQA Class 3 Categorical Exemption Determination For Verizon’s Faux Tree Wireless Telecommunications Facility In Dedicated Public Park, Rejects City Charter Inconsistency Arguments

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.

Continue Reading Fourth District Upholds Use of CEQA Writ Action Discovery Directed To Standing Issue, Affirms Trial Court’s Terminating Sanction For Plaintiff’s Failure To Comply

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.

Continue Reading First District Upholds CEQA Categorical Exemption for Approval of Planned Parenthood Clinic in City of South San Francisco, Clarifies Implied Finding of No Exceptions is Analyzed for Record Support on Narrowest Possible Ground

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.

Continue Reading Fourth District Rejects CEQA Challenge to College District’s Entry into Land Acquisition Agreement Prior to Preparing EIR Due to Plaintiffs’ Failure to Exhaust and Based on Merits

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.

Continue Reading First District Holds CEQA Action Can Be Brought Directly Against Local Air District to Challenge “Authority to Construct” Issued for Mendocino County Asphalt Production Operation

On April 21, 2017, the First District Court of Appeal filed a 22-page published opinion providing significant guidance and analysis concerning the critical, but sometimes elusive, distinction between “discretionary” project approvals that are subject to CEQA and “ministerial” ones that are exempt from it.  Sierra Club, et al. v. County of Sonoma (Ronald and Ernest Ohlson, dba Ohlson Ranch, Real Parties in Interest) (1st Dist., Div. 1, 2017) 11 Cal.App.5th 11. (As a matter of disclosure, I represent the real parties, the Ohlsons, in this action.)
Continue Reading First District Holds Sonoma County Vineyard Development (VESCO) Permit was Ministerial Approval Exempt from CEQA

In a published opinion filed April 13, 2017, the Court of Appeal for the Second Appellate District, Division 5, held that Code of Civil Procedure (“CCP”) § 473(b)’s provisions allowing mandatory relief upon an attorney’s sworn affidavit of mistake do not extend beyond the “dismissal[s]” and “default judgment[s]” referenced in the statute’s plain language.  Specifically, the Court held they did not extend to a judgment entered in favor of a defendant in a CEQA action because the plaintiff’s attorney failed to lodge the certified administrative record and therefore failed to meet plaintiff’s burden of proof.  The Urban Wildlands Group, Inc. v. City of Los Angeles, et al. (2d Dist., Div. 5, 2017) 10 Cal.App.5th 993.

Continue Reading Second District Holds Adverse Judgment in CEQA Action Resulting from Plaintiff Attorney’s Failure to Lodge Administrative Record is Not “Dismissal” or “Default Judgment” Subject to Mandatory Relief Provisions of CCP Section 473(b)

On December 14, 2016, the California Supreme Court denied review and ordered depublished the Sixth District Court of Appeal’s opinion in Bay Area Clean Environment, Inc. v. Santa Clara County, which was previously filed on August 31, 2016 and published at 2 Cal.App.5th 1197.  (See, Supreme Court’s Orders of 12/14 and 12/21/16 in Case No. S237709.)  Accordingly, the result in the case remains the same and is final and binding on the parties, but the Court of Appeal’s opinion is no longer published or citable as precedent in other cases.

Continue Reading Another One Bites the Dust: Supreme Court Denies Review and Depublishes Sixth District’s SMARA/CEQA Opinion Upholding Permanente Quarry Reclamation Plan Amendment and Related EIR