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In an opinion filed September 10, and later ordered partially published on October 9, 2015, the Court of Appeal affirmed the substance of a judgment upholding an EIR for a regional shopping center renovation project in Carlsbad, California, reversing only with respect to certain cost award issues treated in an unpublished portion of the opinion. North County Advocates v. City of Carlsbad (Plaza Camino Real, LP, et al., Real Parties in Interest) (4th Dist., Div. 1, 2015) 241 Cal.App.4th 94. The published portions of the opinion address the case’s facts, applicable CEQA rules and standards of review, and traffic baseline issues; the unpublished portions address issues concerning traffic mitigation measures, the adequacy of the City of Carlsbad’s (“City”) responses to comments, and the propriety of the various aspects of the trial court’s record preparation cost awards that were made to the City and real parties (“Westfield”) as prevailing parties.
Continue Reading Fourth District Addresses CEQA Baseline Issues In Partially Published Opinion Upholding EIR For Carlsbad Shopping Mall Renovation

In a published opinion filed September 2, 2015, the Fourth District Court of Appeal (Division 2) reversed the trial court’s judgment denying a writ petition challenging a school district’s determination that its closure of two schools and related student transfers were exempt from CEQA. Save Our Schools v. Barstow Unified School District Board of Education (2015) 240 Cal.App.4th 128. In directing on remand the issuance of a writ that would, at a minimum, mandate that the District void its exemption determination and reconsider the matter, the Court also held that the District could in further proceedings consider additional evidence not before it at the time it made its initial exemption decision, and that any challengers would have the opportunity to present additional evidence as well.
Continue Reading Back To The Chalk Board: School District’s Math Fails To Justify CEQA Categorical Exemption For School Closures

On July 31, 2015, the Court of Appeal for the First Appellate District, Division One, filed a 23-page published opinion holding that the inadvertent disclosure of attorney-client privileged and work product protected documents by a public agency in response to a Public Records Act (“PRA”) request did not waive the privilege. Newark Unified School District v. The Superior Court of Alameda County (Elizabeth Brazil, Real Party in Interest) (2015) 239 Cal.App.4th 33. While the PRA request and responses at issue were not made in the context of litigation by the requesting party against the responding public agency, the Court’s holding has implications for that scenario, which is a common occurrence in CEQA and other litigation against public agencies.
Continue Reading First District Holds Public Agency’s Inadvertent Disclosure of Privileged Documents In Response To PRA Request Does Not Waive Privilege; Decision Has Implications For Administrative Record Preparation Process In CEQA And Other Actions

In an opinion filed June 8, and ordered published on July 6, 2015, the Fourth Appellate District Court of Appeal affirmed the trial court’s judgment denying a CEQA plaintiff’s motion for attorneys’ fees under CCP § 1021.5, California’s private attorney general statute. Coalition for a Sustainable Future In Yucaipa v. City of Yucaipa (Target Stores, Inc., Real Party In Interest) (4th Dist., Div. 2, 2015) 238 Cal.App.4th 513.  The Court’s opinion explicates in detail and applies the rules governing such motions when brought on a catalyst theory, and does so in a rather unique procedural context – one in which the moving party was an unsuccessful CEQA plaintiff whose appeal of an adverse judgment became moot as a result of the developer’s abandonment of the challenged project for reasons wholly unrelated to plaintiff’s action.
Continue Reading Fourth District Holds Losing CEQA Plaintiff’s Mooted Appeal Was Not “Catalyst” To City’s Revocation Of Project Entitlements After Developer Abandoned Project; Trial Court’s Denial Of Private Attorney General Fee Motion Affirmed

In an opinion filed March 18 and belatedly ordered published on April 13, 2015, the Fourth District Court of Appeal upheld a trial court’s discretion to award only $19,176 in attorneys’ fees under Code of Civil Procedure § 1021.5 to a successful CEQA plaintiff (SOURCE) who sought $221,198 based on a $110,599 “lodestar” with a multiplier of two. Save Our Uniquely Rural Community Environment v. County of San Bernardino (Al-Nur Islamic Center, Real Party in Interest) (4th Dist., Div. 2, 2015) 235 Cal.App.4th 1179.  SOURCE, an organization of individuals, had successfully challenged San Bernardino County’s mitigated negative declaration (MND) and conditional use permit (CUP) for real party in interest Al-Nur Islamic Center’s proposed 7,512-square foot Islamic community center and mosque to be located on a 1.54-acre parcel in a residential part of the unincorporated county. Rejecting 5 of its 6 CEQA arguments, the trial court granted SOURCE’s writ petition on the sole ground that county failed to properly analyze the project’s environmental impacts from wastewater disposal, and ordered county to adequately analyze such impacts under CEQA.
Continue Reading Winners Beware – Fourth District Upholds Trial Court’s Discretion To Drastically Reduce Successful CEQA Plaintiff’s Fees In Granting CCP §1021.5 “Private Attorney General” Award

In a published opinion filed February 18, 2015, the Third District Court of Appeal rejected all legal challenges to the City of Sacramento’s EIR and CEQA compliance for approval of its new downtown entertainment and sports center (ESC) which will serve as the Sacramento King’s new home arena. Saltonstall v. City of Sacramento (3d Dist. 2015) 234 Cal.App.4th 549. Key points of the Court’s decision, which affirmed the trial court’s judgment denying the writ sought by project opponents, include:
Continue Reading CEQA Review of Sacramento Kings Downtown Arena Project Held Legally Adequate In Published Third District Opinion

I recently analyzed proposed legislation (SB 122) seeking to create an alternative procedure for preparation of the CEQA administrative record concurrently with administrative proceedings on a project and prior to any litigation challenging it.  (See “Latest Proposed CEQA Legislation (SB 122) Seeks To Reform Administrative Record Process – At A Price,” by Arthur F. Coon, posted January 22, 2015.)  Under proposed SB 122 the project applicant could initiate the alternative procedure by request to the public agency and, if the procedure were agreed to by the agency, an expedited and statutorily complete record would be prepared.  However, this would be solely at the applicant’s cost and without any ability to recover that cost even if successful in subsequent litigation.
Continue Reading How CEQA’s Administrative Record Preparation Process Could Be Reformed By Eliminating CEQA Petitioners’ Statutory Option To Prepare The Record

California Senate Bill No. 122 (SB 122), introduced by Senators Jackson, Hill and Roth on January 15, 2015, appears to be the newest stab at legislative CEQA “reform.”  But numerous of SB 122’s embryonic provisions raise questions as to whether this proposed curative measure might have some deleterious side effects.
Continue Reading Latest Proposed CEQA Legislation (SB 122) Seeks To Reform Administrative Record Process – At A Price

The Third District Court of Appeal, in a published opinion filed November 20, 2014, affirmed the trial court’s order denying plaintiffs’ application for a preliminary injunction seeking to halt construction of a massive new entertainment and sports center in downtown Sacramento.  (Adriana Gianturco Saltonstall, et al. v. City of Sacramento (Sacramento Basketball Holdings, LLC, RPI) (3d Dist. 2014) 231 Cal.App.4th 837.)
Continue Reading What CEQA Gives, The Legislature Can Take Away: Third District Holds Special Legislation For Sacramento Kings Downtown Arena Project Is Constitutional, Upholds Trial Court’s Denial Of Preliminary Injunction