The 2021-2022 Legislative Session was light on CEQA amendments, and once again did not produce any significant reform. We saw a continued focus on incentivizing affordable and infill developments on the condition that the project pay prevailing wages (AB 2011), reducing barriers for specified sustainable transit projects (SB 922), and amendments akin to “pet project exemptions” that are targeted to solving a narrower set of concerns (SB 118 and SB 886). None of the amendments, however, more broadly limit CEQA’s reach.
A 10-page article by Holland & Knight’s Jennifer Hernandez, published this month by the Center for Jobs & the Economy/California Business Roundtable, documents that CEQA litigation targeted nearly 50,000 housing units – approximately half the state’s total annual housing production – in 2020 alone. While Holland & Knight’s analysis of 2019-2021 CEQA lawsuit data is ongoing, the article’s “interim report”, which can be read here, states there is no expectation of change in the magnitude of anti-housing CEQA actions, which most frequently allege violations relating to analysis of climate change related impacts, i.e., GHGs and VMT.
Continue Reading CEQA vs. Housing: A Very Wrong Picture
On March 7, 2022, the Second District Court of Appeal (Div. 4) filed its published opinion in Southwest Regional Council of Carpenters, et al. v. City of Los Angeles, et al (The Icon at Panorama, LLC, Real Party in Interest) (2022) 76 Cal.App.5th 1154. In reversing the trial court’s judgment and writ setting aside the approvals and EIR for a mixed-use commercial and residential infill development project, the Court held the Project EIR did not violate CEQA’s requirement of an accurate, stable, and finite project description even though the project itself was revised and ultimately approved with components not matching those of any individual alternative studied in the EIR. The Court further held that the City’s addition of a fifth alternative to the Final EIR (FEIR) that was not significantly different from its other previously analyzed alternatives did not require recirculation for additional public comment, and that the City’s response to the sanitation department’s comment about local sewer line and sewage treatment plant capacity was adequate.
Continue Reading CEQA Mixed-Use “Mix and Match” Upheld: Second District Holds Stable Project Description Requirement Does Not Mean Ultimately Approved Version of Revised Mixed Use Project Must Match An Alternative Analyzed In EIR, And New Project Alternative Added to FEIR Does Not Require Recirculation
On May 12, 2022, the First District Court of Appeal filed a 108-page published opinion affirming a judgment denying a CEQA writ petition that challenged Marin County’s approval of a 43-lot single-family residential subdivision on a 110-acre parcel atop a mountain overlooking the Town of Tiburon and San Francisco Bay. Tiburon Open Space Committee v. County of Marin (The Martha Company, Real Party in Interest, and Town of Tiburon, Intervenor and Appellant) (2022) ___ Cal.App.5th ___. Apart from its factual background of nearly a half-century of intense legal battles over (and effectively blocking) the property’s development – which the Court described as “this woeful record before us” – the decision is notable for its legal analysis of how CEQA applies when a lead agency’s discretion in considering a project for approval is constrained by legal obligations. While in this case the legal obligations stemmed from stipulated federal court judgments mandating that the County approve a minimum level of development on the property, the Court’s reasoning and holdings that the scope of CEQA adjusts and is limited commensurate with legal limitations on an agency’s discretionary authority will clearly apply to other contexts. Most obviously, and topically, they plainly will apply to housing development projects when state housing laws impose legal obligations that limit local agencies’ legal authority to disapprove or reduce the density of those projects. (See, e.g., Gov. Code, § 65589.5 (the “Housing Accountability Act”).)
Continue Reading “This Woeful Record”: First District Affirms Judgment Rejecting CEQA Challenges To Marin County’s Approval of 43-Home Mountaintop Subdivision Opposed For Nearly Five Decades By Neighbors And Town of Tiburon
In an opinion filed on December 16, 2021, and belatedly ordered published on January 13, 2022, the Fourth District Court of Appeal rejected a CEQA challenge to a small multifamily project in the City of Santa Cruz. Ocean Street Extension Neighborhood Assn. v. City of Santa Cruz (2021) 73 Cal.App.5th 985 (“OSENA”). The case contains valuable guidance regarding mitigation for biological resources impacts, lays out some common sense principles that may help condense the EIR preparation process, and also provides useful guidance to developers and agencies dealing with water supply issues during the current drought.
Continue Reading Fourth District Rejects CEQA And Municipal Code Challenges To City Of Santa Cruz’s Project Approvals And EIR For Small Multifamily Housing Project
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) 72 Cal.App.5th 666. 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.)
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