In a published decision filed March 30, 2022, the First District Court of Appeal (Division 5) reversed a trial court judgment upholding the reissued final environmental impact report (“RFEIR”) for a 44-single family residence project on a unique, species- and habitat- rich 32-acre site in the City of Livermore’s Garaventa Hills area. Save the Hill Group v. City of Livermore (Lafferty Communities, Inc., Real Party in Interest) (2022) 76 Cal.App.5th 1092. Both the trial court and Court of Appeal agreed that the RFEIR’s analysis of the “no project” alternative was substantively inadequate, because it lacked information about the feasibility of purchase and preservation options that was necessary for the City Council to make an informed, reasoned decision, but the Court of Appeal disagreed with the trial court’s conclusion that Petitioner/Appellant Save the Hill’s failure to exhaust on this issue barred judicial consideration of it. The Court of Appeal rejected Appellant’s remaining arguments that the RFEIR’s analysis and mitigation of the project’s vernal pool fairy shrimp (“VPFS”) and wetlands impacts were inadequate, and that its identified compensatory mitigation for permanent sensitive habitat loss was inadequate. (In a brief concluding portion of the opinion that won’t be further discussed here, the Court also held Appellant had forfeited and lacked standing to raise the issue of City’s alleged mitigation obligations under two prior settlement agreements to which Appellant was not a party.)
Continue Reading First District Holds EIR’s Analysis of “No Project” Alternative To City of Livermore Residential Development Violated CEQA By Failing To Discuss Feasibility Of Purchasing And Preserving Habitat-Rich Garaventa Hills Project Site, Also Addresses Significant Issues Involving Exhaustion Doctrine And Adequacy of Mitigation
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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 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.
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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
Third District Rejects CEQA Challenges To El Dorado Irrigation District Ditch Piping Project, Holds EIR’s Project Description And Analysis Of Potential Hydrology, Biological Resources, and Wildfire Impacts Were Adequate
In an opinion filed January 28, and later certified for publication on February 16, 2022, the Third District Court of Appeal affirmed a judgment denying a petition for writ of mandate that challenged on CEQA grounds the El Dorado Irrigation District’s (“EID”) decision to undertake its Upper Main Ditch piping project. Save the El Dorado Canal v. El Dorado Irrigation District, et al. (2022) 75 Cal.App.5th 239. The challenged water conveyance project would replace about three miles of EID’s open and unlined earthen ditch system with a buried water transmission pipeline in order to conserve water and improve water quality. Petitioner alleged the EIR’s project description was inadequate because it omitted the material fact that the ditch section to be abandoned as a water conveyance also served as the watershed’s only drainage system, and that the EIR insufficiently analyzed the abandonment’s impacts on hydrology, biological resources, and wildfires.
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Continue Reading Third District Rejects CEQA Challenges To El Dorado Irrigation District Ditch Piping Project, Holds EIR’s Project Description And Analysis Of Potential Hydrology, Biological Resources, and Wildfire Impacts Were Adequate
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
By Arthur F. Coon on
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) 72 Cal.App.5th 957. 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.)
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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
Sixth District Holds Coastal Commission’s Post-Approval Analysis of Coastal Development Permit’s Environmental Impacts Violates CEQA
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.
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Continue Reading Sixth District Holds Coastal Commission’s Post-Approval Analysis of Coastal Development Permit’s Environmental Impacts Violates CEQA
Third District Affirms CEQA And Attorneys’ Fees Judgments In Favor Of Department Of Water Resources In Monterey Agreement And Amendment Litigation
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.
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Continue Reading Third District Affirms CEQA And Attorneys’ Fees Judgments In Favor Of Department Of Water Resources In Monterey Agreement And Amendment Litigation
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
By Arthur F. Coon on
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.
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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
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 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.
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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
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 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.
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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
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
By Arthur F. Coon on
Posted in Administrative Record, Aesthetic Impacts, Affordable Housing, Alternatives, Exhaustion, Fees and Costs, Historic and Cultural Resources, Land Use, Litigation, Mitigation, Negative Declaration / Mitigated Negative Declaration, Standard of Review, Standing, Statute of Limitations, Water Supply
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.
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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