On October 20, 223, the First District Court of Appeal (Div. 3) filed an “Order Modifying Opinion; and Denying Petitions for Rehearing and Publication [No Change in Judgment]” in Yerba Buena Neighborhood Consortium, LLC, et al. v. The Regents of the University of California (2023) 95 Cal.App.5th 779, litigation that I analyzed in my 10/10/23 post here.  The Order denied petitions for rehearing, denied the California Building Industry Association’s request to publish unpublished portions of the Opinion, and slightly modified the lengthy opinion to add a single footnote and revise one sentence.  The Court of Appeal’s docket also reflects that petitions for review have been filed in the case and those may not be acted on by the Supreme Court until around the end of the year.Continue Reading First District Denies Rehearing and Publication Requests, Slightly Modifies Opinion With No Change in Judgment in CEQA Case Upholding U.C. Regents’ EIR for Parnassus Heights Campus Long-Range Development Plan; Petitions For Review Filed

In an opinion filed September 13, and modified and certified for publication on October 6, 2023, the Fourth District Court of Appeal (Div. 3) affirmed the trial court’s judgment denying a CEQA writ petition challenging the City of Laguna Beach’s determination that the Guidelines’ Class 31 categorical exemption applied to its approval of a project to remodel a historic single family home.  Historic Architecture Alliance, et al v. City of Laguna Beach, et al (Ian and Cherlin Kirby, Real Parties in Interest) (2023) 96 Cal.App.5th 186.    The decision refines the established CEQA principle that a project that may cause a change in the significance of a historical resource is also one that may have a significant environmental effect (and thus require an EIR or MND) in the unique context of CEQA’s categorical exemption for projects found to be consistent with the “Secretary of the Interior’s Standards for the Treatment of Historic Properties” (the “Secretary’s Standards”).  (CEQA Guidelines, § 15331.)  It also clarifies that the “fair argument” test does not apply to a project opponent’s attempt to establish the historical resource exception (Guidelines § 15300.2(f)) to this categorical exemption; because both the exemption and the exception require the lead agency to make the same factual determination – i.e., the project’s consistency with the Secretary’s Standards – applying the fair argument test to the exception would render the exemption meaningless.Continue Reading Fourth District Affirms Judgment Upholding City’s Use of CEQA Guidelines’ Historical Resource (Class 31) Exemption To Approve Historic Single Family Home Rehabilitation Project; Holds “Fair Argument” Test Doesn’t Apply To Exception Requiring Same Factual Determination As Exemption

In a partially published opinion filed September 20, 2023, the First District Court of Appeal (Div. 3) affirmed the Alameda County Superior Court’s judgments denying writ petitions in three partially consolidated CEQA actions challenging the 2021 project/program EIR for the Comprehensive Parnassus Heights Plan.  Yerba Buena Neighborhood Consortium, LLC, et al v. Regents of the University of California/San Franciscans for Balanced and Livable Communities v. Regents of the University of California (2023) 95 Cal.App.5th 779. Continue Reading First District Affirms Judgment Upholding UCSF’s EIR for Long-Range Development Plan Substantially Increasing Parnassus Heights Campus Development Against Numerous CEQA Challenges

In an opinion filed April 18, and belatedly ordered published on May 10, 2023, the Sixth District Court of Appeal upheld the City of San Jose’s (City) certification of a final Supplemental EIR (FSEIR) for development of three high-rise office towers (the “Project”) on an eight-acre downtown site containing several historic structures which the Project required to be demolished. Preservation Action Council of San Jose v. City of San Jose (SJ Cityview, LLC, Real Party in Interest) (2023) 91 Cal.App.5th 517. In affirming the trial court’s judgment denying Preservation Action Council of San Jose’s (Appellant) petition for writ of mandate, the Court rejected Appellant’s arguments that the FSEIR failed to adequately analyze and provide compensatory mitigation for the historic buildings and failed to adequately respond to comments on those issues.Continue Reading Sixth District Holds Downtown San Jose Office Project FSEIR’s Brief Discussion And Rejection of “Compensatory” Mitigation for Historic Buildings Razed By Project Was Informationally Adequate Under CEQA Based On City’s Unchallenged Factual Finding That No Similar Historic Buildings Existed Elsewhere In City’s Downtown

On March 22, 2023, the California Supreme Court granted the City of San Francisco’s stand-alone depublication request in (and declined to review on its own motion) the First District Court of Appeal’s (Div. 4) decision in Saint Ignatius Neighborhood Association v. City and County of San Francisco.  The depublished opinion reversed a trial court decision that upheld the City’s use of CEQA Guidelines Class 1 (existing facilities) and 3 (small structures) categorical exemptions for a high school athletic stadium project involving the installation of four 90-foot tall light standards to significantly expand nighttime stadium use.  Officially, the Supreme Court’s depublication order is not to be construed as expressing any opinion on the merits, and the Court of Appeal’s decision remains fully binding on the parties but cannot be cited as precedent.  My 12/7/22 post on the case can be found here. Continue Reading CEQA Updates: Supreme Court Depublishes High School Stadium Light Standard Exemption Case; Second District Modifies Pacific Palisades Opinion With No Change In Judgment

In a published opinion filed March 8, 2023, the Second District Court of Appeal (Division 8) affirmed the trial court’s judgment denying writ relief in a lawsuit challenging approval of a CEQA-exempt eldercare facility project in Pacific Palisades, an oceanside area of the City of Los Angeles.  Pacific Palisades Residents Association, Inc. v. City of Los Angeles (Rony Shram, et al, Real Parties in Interest) (2023) 88 Cal.App.5th 1338.   The decision capped almost six years of “vociferous” NIMBY opposition to a much-needed project – an opposition that failed on its merits at every governmental and judicial level of review to which it was taken, yet relentlessly continued nonetheless.Continue Reading Another Call for CEQA Litigation Reform?  Second District Rejects NIMBY Group’s CEQA, Coastal Act, and Land Use Challenges, Affirms Judgment Upholding Approval of Zoning-Compliant And CEQA-Exempt Eldercare Facility On Flat, Graded, Vacant One-Acre Infill Site Surrounded By Residential and Commercial Development

In a published opinion filed on February 23, 2023, the Fourth District Court of Appeal reversed a judgment of dismissal after the sustaining of a demurrer and held that an amended writ petition challenging a city’s street closure project sufficiently stated claims against the city for Vehicle Code, local ordinance, and CEQA violations.  Committee to Relocate Marilyn v. City of Palm Springs (PS Resorts, Real Party in Interest) (2023) 88 Cal.App.5th 607.  As relevant here, it held the operative petition was not time-barred despite its first alleging CEQA violations more than 35 days after the City’s filing of a Notice of Exemption (“NOE”) because the City subsequently changed its project from a street vacation to an allegedly temporary street closure and Petitioner (the “Committee” or “Petitioner”) filed its amended petition alleging a CEQA claim within 180 days of learning of the change.Continue Reading “Permanent Vacation” In Palm Springs? – Fourth District Holds CEQA’s Short 35-Day Statute of Limitations Does Not Apply Despite City’s Filing of NOE Due To Subsequent Material Change In Street Vacation Project Which Triggered Maximum 180-Day Limitations Period

On February 15, 2023, the California Supreme Court denied the petitions for review and issued an order decertifying the Second District Court of Appeal’s controversial (and previously published) opinion in G.I. Industries v. City of Thousand Oaks (2022) 84 Cal.App.5th 814, rev. den. and depub’d. 2/15/23 (Supreme Ct. Case No. S277439).  (My prior posts on this decision and its subsequent procedural history can be accessed by clicking on their following dates:  10/31/22; 12/5/22; and 1/30/23.Continue Reading Supreme Court Denies Review And Depublishes Troublesome Brown Act/CEQA Exemption Decision

In an opinion in a much-publicized case, filed December 28, 2022, and later ordered published on January 26, 2023, the First District Court of Appeal (Div. 3), upheld the City of Livermore’s (“City”) approval of a 130-unit affordable housing project on a downtown infill site and its accompanying determination that the project was CEQA-exempt under Government Code section 65457 (“Section 65457”).  (Save Livermore Downtown v. City of Livermore (2023) 87 Cal.App.5th 1116 (“SLD”).)  The important opinion was ordered published based on requests submitted by City, Attorney General Rob Bonta, YIMBY, and the California Building Industry Association.Continue Reading First District Upholds Use of Government Code Section 65457 CEQA Exemption For Downtown Livermore Affordable Housing Project, Roundly Rejects Meritless Arguments of NIMBY Opposition

In an opinion on rehearing filed January 18, 2023, the Third District Court of Appeal reissued its previous published opinion in the Save Our Capitol! case (my January 2, 2023 post on which can be found here) with the addition of a few pages of discussion addressing “Relief” inserted at the end of the majority opinion just before its “Disposition.” Continue Reading Third District Adds Brief CEQA Severance Analysis After Rehearing In Save Our Capitol! Case, Limits Its Relief To Allow Capitol Annex Demolition To Go Forward