In a lengthy, but mostly unpublished, opinion filed December 16, 2021, the Fourth District Court of Appeal affirmed the trial court’s judgment rejecting a petitioner group’s CEQA, Planning and Zoning Law, and procedural due process/fair hearing challenges to the City of San Diego’s approval of a four-lane road connecting existing developments.  Save Civita Because Sudberry Won’t v. City of San Diego (2021) ___ Cal.App.5th ___.  In the opinion’s published portions, the Court held that (1) the City did not violate CEQA Guidelines § 15088.5(g) in failing to summarize revisions made to a recirculated draft EIR, and (2) petitioner’s procedural due process claim was foreclosed because the City Council acted in a quasi-legislative capacity in certifying the FEIR and approving the road project.  (In the opinion’s unpublished portions, which won’t be discussed in detail here, the Court also upheld the trial court’s rejection of Petitioner’s claims that the FEIR:  failed to analyze a project alternative of removing the road from a community plan; failed to adequately analyze traffic impacts and hazards; failed to disclose the VMT calculation’s margin of error; and failed to discuss impacts on General Plan consistency and pedestrian-friendly communities.)

Continue Reading Fourth District Rejects CEQA Challenges To San Diego’s FEIR And General/Specific Plan Amendments For Connector Road Construction Project; Holds Procedural Due Process Protections Did Not Apply Because Underlying Approvals Were Quasi-Legislative, Not Quasi-Adjudicatory

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) ___ Cal.App.5th ___. 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

Against the backdrop of another severe drought, water supply and impact issues continue to be points of contention for water agencies, water users, conservation groups, and the state.  And, of course, litigation over water is not limited to water rights and usage, but extends to related environmental review under CEQA.  On September 22, 2021, the Third District Court of Appeal issued a published opinion in Central Delta Water Agency v. Department of Water Resources (2021) 69 Cal.App.5th 170, disposing of several consolidated cases and analyzing operation of the state’s massive State Water Project (SWP) through a CEQA lens.  While the case does not break any new legal ground, it applies well-recognized CEQA principles to a lengthy and complex fact pattern involving multiple rounds of lengthy litigation, settlement, and EIR preparation.

Continue Reading Third District Affirms CEQA And Attorneys’ Fees Judgments In Favor Of Department Of Water Resources In Monterey Agreement And Amendment Litigation

In a published opinion filed August 19, 2021, the Second District Court of Appeal reversed a judgment of the Los Angeles County Superior Court that found fault with the EIR for an improvement project within the San Gabriel Mountains National Monument portion of the Angeles National Forest.  Save Our Access–San Gabriel Mountains v. Watershed Conservation Authority (2021) 68 Cal.App.5th 8.  The trial court had rejected plaintiff’s claims that CEQA required the EIR to analyze alternatives beyond the “no project” alternative, and that the project was inconsistent with applicable land use and management plans, but issued a writ requiring additional analysis of the project’s parking reduction “impacts.”  In resolving the ensuing appeals of both parties, the Court of Appeal reversed the judgment on the parking issue, finding that reduction in parking is a social not environmental, impact and that plaintiff had failed to identify any secondary adverse physical effects on the environment resulting from the reduction.  It affirmed the remainder of the judgment denying plaintiff’s other claims, and reversed the trial court’s fee award to plaintiff as compelled by its disposition of the merits.

Continue Reading Second District Confirms Parking Is (Still) Not A CEQA Impact, Reverses Judgment That Found EIR For San Gabriel Mountains Wilderness Recreation And Preservation Project Deficient For Not Sufficiently Analyzing “Impact” Of Reducing Recreational Parking

In a lengthy opinion filed April 8, and ordered published on May 7, 2021, the Third District Court of Appeal affirmed a judgment rejecting a number of CEQA challenges to the California State Land Commission’s (Lands Commission) supplemental EIR for and related approval of a lease modification to facilitate a desalination plant in Huntington Beach.  California Coastkeeper Alliance v. State Lands Commission (Poseidon Resources (Surfside) LLC, Real Party in Interest) (2021) 64 Cal.App.5th 36.  In holding that the Commission properly elected to prepare a supplemental (rather than subsequent) EIR, did not err in refusing to assume lead agency status, and did not unlawfully piecemeal environmental review, the Court provided guidance on a number of significant CEQA issues.

Continue Reading Third District Affirms Judgment Upholding State Lands Commission’s Supplemental EIR For Desalination Plant Lease Modification, Rejects CEQA Claims That Commission Piecemealed Review And Should Have Assumed Lead Agency Status And Prepared A Subsequent EIR

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) 50 Cal.App.5th 467.)  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