“Birds of a feather flock together.”  — Proverb

The Fourth District Court of Appeal (Div. 2) affirmed a judgment entered after the sustaining of a demurrer without leave, holding that a mandate action brought by The Inland Oversight Committee (IOC), CREED-21, and Highland Hills Homeowners Association (HOA) alleging CEQA and Water Code violations was barred by res judicata (based on the final judgment in the HOA’s prior related CEQA action), and failure to state a claim.  The Inland Oversight Committee v. City of San Ramon (First American Title Insurance Company) (2018) ___ Cal.App.5th ___.  (The Court’s opinion, filed September 14 and later ordered published on September 27, 2018, denied the parties’ motions to dismiss and strike and related requests for judicial notice as moot in light of its disposition on the merits.)

Continue Reading Fourth District Holds CEQA Challenge To Ministerial Approval Of Development Project Modifications Barred By Res Judicata, Water Supply Assessment Not Required

In a lengthy published opinion filed on August 22, 2018, the First District Court of Appeal (Div. 4) affirmed the trial court’s judgment rejecting various CEQA challenges to the City of San Francisco’s (“City”) Program EIR analyzing the environmental impacts of its 2009 General Plan Housing Element, which it adopted on June 29, 2011.  San Franciscans for Livable Neighborhoods v. City and County of San Francisco (2018) 26 Cal.App.5th 596.  San Franciscans for Livable Neighborhoods (“SFLN”), an unincorporated association comprised of more than a dozen neighborhood organizations, had challenged the EIR – mostly unsuccessfully – in the trial court.  It then appealed from adverse portions of the judgment concerning the EIR’s baseline and impact analyses for traffic, water supply, land use, and visual resources impacts; the City’s decision not to recirculate the EIR; the EIR’s alternatives analysis; and the feasibility of certain proposed mitigation measures.

Continue Reading “Growing Pains”: First District Holds Program EIR for San Francisco’s General Plan Housing Element Amendment Complies with CEQA

As another year draws near its close, a number of notable recent CEQA developments in both the legislative and regulatory arenas have occurred that bear mention.  Below are some highlights of new CEQA legislation that will be in effect in the new year, as well as significant regulatory changes in process.

Continue Reading Year-End CEQA Legislative And Regulatory Roundup – December 2017

On October 15, 2017, Governor Edmund G. Brown, Jr. sent a veto letter to California State Assembly Members, returning a controversial and flawed proposed land use bill – AB 890 – without his signature.  My partner Bryan Wenter and I authored a post here last month detailing the many problems we saw with the bill.  (SeeThe Opposite of CEQA Reform: Legally Flawed AB 890 Would Expand Opportunities For CEQA Litigation Abuse While Abridging Constitutional Local Initiative Rights,” by Arthur F. Coon and Bryan W. Wenter, AICP, posted September 19, 2017.)

Fortunately, Governor Brown was receptive to the bill’s many critics, and struck a blow for local land use control, local initiative rights, CEQA reform and commence sense by vetoing it.  His short letter to Assembly members, which can be found here, states in pertinent part that “[i]nstead of the piecemeal approach taken in this bill, I prefer a more comprehensive CEQA review, which takes into account both the urgent need for more housing and thoughtful environmental analysis.  Hear, hear!

Continue Reading Governor Brown Vetoes Flawed AB 890, Signals Preference for More Comprehensive CEQA Reform

AB 890 (Medina – D), recently sent to Governor Brown for action by October 15, seeks to amend Government Code § 65867.5 and to add §§ 65363 and 65850.10 to prevent development agreements and certain types of land use planning and zoning legislation from being enacted by local voter-sponsored land use initiatives.  The bill would substantially abridge the local electorate’s constitutionally guaranteed and reserved initiative power by purporting to exclusively “delegate” specified exercises of legislative authority to local governing bodies – city councils and county boards of supervisors – and thus concomitantly eliminating local voters’ long-held and until now unassailable rights to directly legislate in such areas pursuant to California Constitution, Article II, Section 11, and the procedures of the Elections Code.

The bill’s stated purpose is to ensure the enumerated types of local development proposals are subjected to CEQA review – and, implicitly, to provide expanded opportunities for litigation under a flawed CEQA statute the legislature continues to refuse to meaningfully reform – by annulling the constitutional right of local voters to directly legislate in these areas, a presently enjoyed and “jealously guarded” right the exercise of which is not currently subject to CEQA review.  Long story short:  AB 890 is a bad bill that proposes a cure far worse than the perceived disease.  As will be apparent from the discussion of its provisions below, the proposed law is deeply flawed, of doubtful constitutionality, and the opposite of CEQA reform.

Continue Reading The Opposite of CEQA Reform: Legally Flawed AB 890 Would Expand Opportunities for CEQA Litigation Abuse While Abridging Constitutional Local Initiative Rights

On August 17, 2016, the California Supreme Court ordered the Fourth District’s opinion in People for Proper Planning v. City of Palm Springs (2016) 247 Cal.App.4th 640 to be depublished, rendering it unciteable and of no precedential effect.  I posted two previous blog entries on the Court of Appeal’s original decision and its subsequent modificationContinue Reading Supreme Court Depublishes Quirky Fourth District CEQA/General Plan Decision

Following up on their 2015 report covering all CEQA lawsuits filed during the 2010-2012 period, Holland & Knight lawyers Jennifer Hernandez, David Friedman and Stephanie DeHerrera recently released a portion of the sequel – the 2013-2015 update – covering CEQA lawsuits targeting housing projects within the Southern California Association of Governments (SCAG) region. The document is entitled “In the Name of the Environment Update: CEQA Litigation Update For SCAG Region (2013-2015)” and can be found on Holland & Knight’s website at https://www.hklaw.com/publications/In-the-Name-of-the-Environment-Update-07-26-2016/. The accelerated release of findings for California’s most populous region – SCAG covers six counties and 191 cities – was prompted by Governor Brown’s controversial May 2016 proposal to require “by right” ministerial approvals of zoning-compliant multifamily infill projects meeting certain affordable housing and other criteria. (My post on the 2015 Holland & Knight study can be found here; my partner Bryan Wenter’s post on Governor Brown’s “by-right” proposal can be found here.)

Continue Reading Holland & Knight SCAG Update Report: CEQA Litigation Abuse Hurts Infill Housing

In an order filed June 17, 2016, the Court of Appeal for the Fourth Appellate District (Division 2) modified its opinion filed April 22, and ordered partially published May 20, 2016, in People for Proper Planning v. City of Palm Springs (2016) ___ Cal.App.4th ___, 2016 WL 1633062.  The modification, which did not affect the judgment, substituted at page 8 of the prior slip opinion a paragraph discussing the operation of categorical exemptions and the “unusual circumstances” exception thereto, and cited to the relevant standards enunciated by the Supreme Court’s decision in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1105, 1114.  It also added a footnote to page 9 stating:  “The City does not dispute that this case presents “unusual circumstances.””

Continue Reading Fourth District Modifies CEQA Categorical Exemption Opinion Involving Palm Springs General Plan Amendment Without Altering Judgment

In a brief – and somewhat odd – opinion filed April 22, and belatedly ordered partially published on May 20, 2016, the Fourth District Court of Appeal reversed a trial court judgment denying a petition for writ of mandate challenging a General Plan Amendment (GPA) adopted by the City of Palm Springs as categorically exempt from CEQA.  People for Proper Planning v. City of Palm Springs (4th Dist., Div. 2, 2016) 247 Cal.App.4th 640, Case No. E062725.  The Court held the trial court erred in upholding the City’s positions that the GPA, which eliminated minimum density requirements for all residential land use categories, was exempt from CEQA review under the Class 5 categorical exemption and because it allegedly did not change the environmental “baseline,” i.e., the City’s alleged preexisting practice of ignoring the General Plan’s minimum density provisions (and, hence, its allowable density ranges) when acting on residential development applications. In light of its CEQA ruling requiring reversal and further environmental (and necessarily General Plan consistency) analyses by the City, the Court held that it need not reach appellant PFPP’s other arguments that the GPA rendered the General Plan internally inconsistent, and violated statutory requirements that City accommodate its fair share of regional housing needs for all income levels.

Continue Reading Home(s) In The “Range”: Fourth District Overturns CEQA Exemption For City of Palm Springs’ General Plan Amendment Removing Minimum Residential Density Requirements