In an opinion filed November 15, and later ordered published on December 14, 2021, the Sixth District Court of Appeal reaffirmed the basic CEQA principle that required environmental review and analysis must precede project approval, and it applied that principle to invalidate the California Coastal Commission’s (Commission) approval of a Coastal Development Permit (CDP) for a residential subdivision project in Monterey County. Friends, Artists and Neighbors of Elkhorn Slough v. California Coastal Commission (Heritage/Western Communities, Ltd., et al., Real Parties in Interest) (2021) ___ Cal.App.5th ___. While the dispositive rule is a simple one, the case’s more complex facts and procedural history make it interesting – and somewhat disturbing – on a number of levels.

Continue Reading Sixth District Holds Coastal Commission’s Post-Approval Analysis of Coastal Development Permit’s Environmental Impacts Violates CEQA

On May 20, 2021, Governor Newsom signed into law Senate Bill No. 7, the “Jobs and Economic Improvement Through Environmental Leadership Act of 20216” (the “Act”), which repealed and added Chapter 6.5 to Division 13 of the Public Resources Code (sections 21178 through 21189.3).  The new Act, which was immediately effective as an “urgency” statute, essentially modifies and reenacts former 2011 legislation that was repealed by its own terms on January 1, 2021.  Like the former leadership act, the new legislation authorizes the Governor, until January 1, 2024, to certify certain “environmental leadership development projects” (“leadership projects”) that meet specified requirements for streamlining benefits related to CEQA.  (Pub. Resources Code, §§ 21180, 21181.)  To qualify for CEQA streamlining benefits under the new Act, the Governor must certify a project as a leadership project before January 1, 2024.  (§ 21181.)

Continue Reading CEQA Urgency Legislation Reenacts Modified Version of Environmental Leadership Act, Adds Certain Housing Development Projects As Eligible For Governor Certification And Streamlining Benefits

As we rapidly approach the end of a year of COVID-related challenges and uncertainties, CEQA practitioners may want to review the year’s key legislation impacting CEQA and its application, which was contained in the handful of bills summarized below.

  • AB 168 (Aguilar-Curry). This urgency legislation became effective with the Governor’s signature on September 25, 2020.  It amends Government Code §§ 65400, 65913.4 and 65941.1 to correct an “oversight” in SB 35 (Weiner), namely, that 2017 law’s failure to consider potential destruction of tribal cultural resources as a result of the streamlined, ministerial (and thus CEQA-exempt) approval process it authorized for multifamily housing development projects satisfying specified objective planning standards.  (SB 35 is summarized in detail in my 12/7/17 blog post, which can be found here.)


Continue Reading 2020 CEQA Legislative Developments

On April 2, 2020, the Second Appellate District Court of Appeal (Division 5) filed its published opinion in Coalition for an Equitable Westlake/MacArthur Park v. City of Los Angeles et al. (Adrian Jayasinha et al., Real Parties in Interest) (2020) 47 Cal.App.5th 368, which affirmed a judgment dismissing a CEQA action challenging the City’s project approvals and Mitigated Negative Declaration (MND) for a mixed-use development project.  The judgment of dismissal was entered after the trial court sustained without leave the City’s and Real Parties’ demurrers on statute of limitations grounds.  In affirming, the Court reaffirmed and followed Supreme Court precedent “ma[king] clear that the filing of a facially valid notice [of determination or notice of exemption] starts the running of the statute of limitations, even where the underlying CEQA determinations may be flawed.”  (Citing Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 43 [NODs]; Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 505 [NOEs].)

Continue Reading Second District Reaffirms Rule That Filing of Facially Valid NOD Triggers Short CEQA Statute of Limitations And Plaintiff May Not “Go Behind” Agency’s Declarations In Document To Challenge Validity of Project Approval

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) 46 Cal.App.5th 665.  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.

Continue Reading Second District Affirms Judgment Invalidating City of Agoura Hills’ Mixed-Use Project Approvals and Related MND Based On CEQA and Local Oak Tree Ordinance Violations

In an opinion filed January 30, and later ordered published on March 2, 2020, the Third District Court of Appeal affirmed a judgment denying a writ petition filed by plaintiffs Environmental Council of Sacramento and the Sierra Club challenging the EIR for Cordova Hills, a large master planned community project approved by Sacramento County.  Environmental Council of Sacramento v. County of Sacramento (Cordova Hills, LLC, et. al., Real Parties in Interest) (3d Dist. 2020) 45 Cal.App.5th 1020.

Continue Reading Third District Affirms Judgment Rejecting CEQA Challenges To EIR For Cordova Hills Master Planned Community Project

CEQA’s Class 32 categorical exemption for “infill development” applies to proposed developments within city limits on sites of five or fewer acres substantially surrounded by urban uses, where the site has no habitat value for special status species, can be adequately served by all required utilities and public services, and the project would not have significant traffic, noise, air quality, or water quality impacts. (CEQA Guidelines, § 15332(b)-(e).)  But another important qualification is that the project must be “consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations.” (§ 15332(a).)  A recent Fourth District decision addressed this key requirement of the infill exemption, and upheld application of the Class 32 exemption to the City of San Diego’s approval of a project proposing seven (7) detached residential condominium units on a steeply sloped, environmentally sensitive half-acre site –despite general plan minimum density policies that would ordinarily require 16 to 23 dwelling units on a parcel of that size.  Holden v. City of San Diego (IDEA Enterprises, LP, Real Party in Interest) (2019) 43 Cal.App.5th 404.

Continue Reading Fourth District Upholds CEQA Class 32 Infill Exemption For Small Residential Condo Project On Environmentally Sensitive Lands As Consistent With San Diego’s General Plan Despite Failure To Meet Recommended Minimum Density

In an opinion originally filed June 28, and later certified for partial publication on July 22, 2019 (upon the request of the California Building Industry Association), the Second District Court of Appeal affirmed a judgment denying a CEQA writ petition challenging a project converting a vacant former apartment building into a boutique hotel in Los Angeles’ Hollywood area.  Hollywoodians Encouraging Rental Opportunities (HERO) v. City of Los Angeles et al. (Millennium Settlement Consulting/1850 North Cherokee, LLC et al., Real Parties in Interest) (2019) 37 Cal.App.5th 768.  The MND for the project was legally adequate, and the City did not err in failing to prepare an EIR to analyze loss of affordable housing and tenant displacement impacts, because the former apartment building had been withdrawn from the rental market for years and was vacant at the time environmental review for the hotel project commenced.  Because the relevant CEQA baseline when review commenced in 2015 was a vacant building already withdrawn from the rental market, the record did not support a fair argument that conversion of the building to hotel use would have significant impacts on Hollywood’s stock of rent-controlled housing or displacement of residents.

Continue Reading “Baseline” Basics: Second District Rejects CEQA Challenge To Hollywood Hotel Project MND Alleging Unanalyzed Human/Housing Displacement Impacts Because Plaintiffs Relied On Incorrect Environmental Baseline

In a 30-page opinion originally filed July 3, and certified for publication on July 18, 2019, the Third District Court of Appeal affirmed the trial court’s judgment denying a writ petition challenging, on zoning law and CEQA grounds, the City of Sacramento’s approval of a high-rise infill housing project in its midtown area.  Sacramentans for Fair Planning v. City of Sacramento (2500 J Owners, LLC, Real Party in Interest) (2019) 37 Cal.App.5th 698.  The project, known as the Yamanee project, calls for construction of a mixed-use condominium building 15 stories (and 178-1/2-feet) high on a .44-acre site at the southeast corner of 25th and J streets.  It would total 177,032 square feet of space on the 19,200 square foot site, consisting of one floor of commercial uses, three levels of parking, one floor of resident amenities, and 10 floors containing 134 residential condominiums.

Continue Reading Third District Upholds Sustainable Communities Environmental Assessment (SCEA) Used Instead Of Traditional CEQA Document To Approve High-Rise, High-Density Mixed-Use Condo Housing Project In Sacramento’s Midtown