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 modification
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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.)

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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.””
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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.

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In one of the most widely followed land use cases in recent years, the Supreme Court of California unanimously upheld the City of San Jose’s affordable housing ordinance because it was intended to advance the constitutionally permissible public purposes of increasing the amount of affordable housing in the community and promoting economically diverse developments. California Bldg. Industry Ass’n v. City of San Jose, 61 Cal.4th 435 (June 15, 2015, Case No. S212072). According to the court, such ordinances should be evaluated under a municipality’s broad discretion to regulate the use of real property to serve the legitimate interests of the general public and the community at large, rather than as an exaction imposed to mitigate the adverse impacts of development.
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