The California Legislature has enacted new Public Resources Code § 21159.25, effective as of January 1, 2019 (Stats. 2018, c. 670 (A.B. 1804)), which extends much of the substance of the existing CEQA Guidelines’ Class 32 categorical exemption for “infill development” (14 Cal. Code Regs., § 15332) to certain multi-family housing projects in urbanized, unincorporated county areas.  While largely patterned after the Class 32 exemption, the statute thus has a few unique and significant twists and limitations, as explained below.

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Spring now being practically “in the air,” a bit of CEQA “spring cleaning” seems appropriate – so here’s a brief look at the status of some significant CEQA-related cases that are now pending before our Supreme Court, or in which its review has been sought:

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In a unanimous 33-page opinion authored by Justice Ming Chin and issued on December 24, 2018, the California Supreme Court addressed the standard of review for claims challenging the legal sufficiency of an EIR’s discussion of environmental impacts, and also CEQA’s rules regarding deferral and adequacy of mitigation measures.  Sierra Club v. County of Fresno (Friant Ranch, L.P.) (2018) 6 Cal.5th 502, Case No. S219783.  In affirming in part and reversing in part the Court of Appeal’s judgment, the Supreme Court held that the EIR for the Friant Ranch Project – a 942-acre master-planned, mixed-use development with over 2,500 senior residential units, 250,000 square feet of commercial space, and extensive open space/ recreational amenities on former agricultural land in north central Fresno County – was deficient in its informational discussion of air quality impacts as they connect to adverse human health effects.  In doing so, the decision provides guidance in an area – the legal adequacy of an EIR’s discussion on a topic required by CEQA – that it held does not fit neatly within CEQA’s usual standard of review dichotomy, which provides for de novo review and exacting judicial scrutiny of alleged procedural errors (e.g., an EIR’s complete omission of a required topic area) and deferential substantial evidence review of an EIR’s or agency’s factual determinations and conclusions.

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A few recent developments and upcoming events in the CEQA world bear quick mention:

  • The BART Housing Bill:

Under AB 2923, BART now has limited land use regulation authority on its own lands near its stations. BART is required to adopt Transit-Oriented Development (TOD) standards for its lands by July 1, 2020, and its action in this regard is subject to CEQA review, with BART acting as the lead agency.  The new law declares the minimum TOD standards for this purpose (setting minimum density and height limits, and maximum parking limits) are set forth in BART’s 2017 TOD Guidelines.  Development projects which meet TOD zoning requirements and provide 30% affordable housing will qualify for streamlined, “by-right,” ministerial approval with no additional CEQA review.  The law also requires cities and counties to adopt zoning standards for BART-owned lands, conforming to BART’s adoption of TOD standards for height, density, parking, and FAR for eligible TOD projects, within 2 years of BART’s action, or by July 1, 2022 if BART fails to act.  The new law is intended to increase California’s housing supply and provide some relief from its housing crisis, and could enable BART to develop up to 20,000 residential units and 4.5 million square feet of office/commercial uses on 250 acres of BART-owned lands by 2040.  My partner Bryan Wenter’s excellent post on this new law can be found here.


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“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 Bernardino (First American Title Insurance Company) (2018) 27 Cal.App.5th 771.  (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.)


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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.

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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.

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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!


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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.


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