In a mammoth 132-page published opinion (with an additional five pages of appendices) filed on June 12, 2020, the Fourth District Court of Appeal (Division One) mostly affirmed the trial court’s judgment invalidating San Diego County’s approvals of a 2018 Climate Action Plan (CAP), related Guidelines for Determining Significance, and related Supplemental EIR (SEIR).  The opinion – which marked “the third time the County’s attempt to adopt a viable climate action plan and related CEQA documents” had been before the Court – resolved consolidated appeals in three cases, in which the lead plaintiffs were Golden Door Properties, LLC and the Sierra Club.  (Golden Door Properties, LLC v. County of San Diego (2020) ___ Cal.App.5th ___.)  While the Court of Appeal reversed the trial court’s findings that the CAP was inconsistent with the County’s General Plan (applying the familiar highly deferential standard of review to the County’s consistency determination), that several of the County’s responses to SEIR comments were inadequate, and that the SEIR’s geographical scope of study for cumulative impacts was inconsistent, it otherwise affirmed the trial court’s findings of significant CEQA violations affecting the CAP and SEIR.

Continue Reading Third Time Is Not The Charm: Fourth District Affirms Judgment Setting Aside San Diego County’s Climate Action Plan And Related Supplemental EIR Approvals Due To CEQA Violations

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

The City of Sacramento received an early Christmas present with the December 18 publication of the Third District Court of Appeal’s opinion in Citizens for Positive Growth & Preservation v. City of Sacramento (2019) 43 Cal.App.5th 609, which was originally filed on November 26, 2019.  The decision affirmed a trial court judgment upholding the City’s 2035 General Plan against the plaintiff group’s Planning and Zoning Law and CEQA challenges.  The opinion’s most significant CEQA holding was that plaintiff’s challenge to the EIR’s transportation impacts analysis was moot because the applicable law currently in effect at the time of judgment in the appellate court – specifically, Public Resources Code § 20199(b)(2) (enacted as part of SB 743) – provides that auto delays measured by LOS or similar measures shall not be considered significant environmental impacts.  The Court of Appeal also rejected all of plaintiff’s other CEQA challenges, including those to the City’s non-adoption of the no-project alternative, its decision not to recirculate the EIR after adding numerous supplemental changes to the draft 2035 General Plan, and its Final EIR’s GHG and cyclist safety analyses.

Continue Reading Out With The Old (And In With The New … Next Year)! – Third District Rejects CEQA And General Plan Consistency Challenges to Sacramento’s 2035 General Plan Update And Related EIR, Holds Traffic Analysis Challenge Based On Lowering of Acceptable LOS Is Mooted By Public Resources Code § 20199, But New VMT Standard Doesn’t Yet Apply

By October 21, 2019 letter – a decision on which is due by December 20, 2019 – the California State Association of Counties (“CSAC”) and the League of California Cities (“League”) have requested the California Supreme Court to depublish the Second District’s decision in a CEQA case involving a controversial Hollywood development project. Stopthemillenniumhollywood.com, et al. v. City of Los Angeles, et al. (2019) 39 Cal.App.5th 1.  A copy of the CSAC/League letter can be accessed here; I previously blogged on this case here.

Continue Reading Depublication of CEQA EIR Project Description Detail Case Sought by CSAC and League of Cities

In an opinion originally filed on July 31, and belatedly ordered published on August 22, 2019, the Second District Court of Appeal (Division 3) affirmed a judgment granting a CEQA writ petition invalidating the final EIR and project entitlements for the Millennium Project, a controversial proposed mixed-use development on a 4.47-acre parcel straddling Vine Street and surrounding the historic Capital Records Building in Hollywood.  Stopthemillenniumhollywood.com, et al. v. City of Los Angeles, et al. (Millennium Hollywood LLC, Real Party in Interest) (2019) 39 Cal.App.5th 1.  The Court upheld the trial court’s finding that the EIR violated CEQA’s requirement for a stable and finite project description as a matter of law.  Reasoning that “the project description is at the heart of the EIR process in this case,” the Court found it “not necessary to reach appellants’ [the City and developer Millennium]” challenges to several other grounds upon which the trial court issued its writ, including findings that the EIR’s transportation analysis improperly failed to use responsible agency Caltrans’ methodology, that its analysis of cumulative traffic impacts was unsupported by substantial evidence, and that a condition of approval improperly expanded the approved project uses beyond those actually analyzed in the EIR.  It also declined to address plaintiff/cross-appellant’s claim that the City failed to notice and consult with the California Geological Survey regarding potential seismic hazards.

Continue Reading Are Urban Land Uses And Project Design Components Fungible For CEQA Project Description Purposes As Long As Maximum Possible Environmental Impacts Are Disclosed And Analyzed? Second District Doesn’t Think So, Holds Controversial Millennium Hollywood Project EIR’s “Blurry” Project Description Violates CEQA

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

In a lengthy opinion filed February 22, and belatedly ordered published on March 25, 2019, the First District Court of Appeal (Div. 1) affirmed the trial court’s judgment denying a petition for writ of mandate challenging the EIR for a mixed use business and residential project (the “5M Project”) on 4 acres in downtown San Francisco.  South of Market Community Action Network v. City and County of San Francisco (Forest City California Residential Development, Inc., et al., Real Parties in Interest) (2019) 33 Cal.App.5th 321.  The 5M Project includes a general plan amendment and development agreement, and would provide “office, retail, cultural, educational, and open-space uses …, primarily to support the region’s technology industry and provide spaces for co-working, media, arts, and small-scale urban manufacturing” on a site bounded by Mission, Fifth, Howard, and Sixth Streets.  The project site is currently occupied by eight buildings with approximately 317,700 gross square feet (gsf) of office and commercial uses (including the Chronicle Building, which the project would renovate), and seven surface parking lots.

Continue Reading First District Rejects Laundry List Of CEQA Challenges To EIR For Mixed Use 5M Project In Downtown San Francisco

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

In a lengthy, partially published opinion filed January 12, 2018, the First District Court of Appeal (Division 3) partly affirmed, but in large part reversed, the trial court’s judgment granting a writ of mandate directing the City of Los Angeles to set aside its FEIR certification and approval of BNSF Railway Company’s (“BNSF”) project to construct a new intermodal railyard facility, near the Port of Los Angeles, to handle containerized cargo transported through the ports of Long Beach and Los Angeles.  City of Long Beach, et al., Xavier Becerra (Attorney General, as Intervener) v. City of Los Angeles, (BNSF Railway Company, Real Party in Interest) (2018) 19 Cal.App.5th 465.

Continue Reading First District Holds CEQA Exhaustion Requirements Don’t Apply to Attorney General, Upholds Adequacy of Most of EIR’s Analysis for BNSF Railyard Project Near Port of Los Angeles