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Arthur F. Coon is the Co-Chair of Miller Starr Regalia’s Land Use Practice Group and Chair of its Appellate Practice Group. Art has distinguished himself over a more than 30-year career as a top CEQA and land use law litigator at the trial and appellate levels of both federal and state courts, including an appearance as counsel of record before the U.S. Supreme Court. His areas of expertise include land use, environmental law, the law of public agencies, extraordinary writs, and the California Environmental Quality Act (CEQA).

CEQA’s Class 32 categorical exemption for “infill development” applies to proposed developments within city limits on sites of five or fewer acres substantially surrounded by urban uses, where the site has no habitat value for special status species, can be adequately served by all required utilities and public services, and the project would not have significant traffic, noise, air quality, or water quality impacts. (CEQA Guidelines, § 15332(b)-(e).)  But another important qualification is that the project must be “consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations.” (§ 15332(a).)  A recent Fourth District decision addressed this key requirement of the infill exemption, and upheld application of the Class 32 exemption to the City of San Diego’s approval of a project proposing seven (7) detached residential condominium units on a steeply sloped, environmentally sensitive half-acre site –despite general plan minimum density policies that would ordinarily require 16 to 23 dwelling units on a parcel of that size.  Holden v. City of San Diego (IDEA Enterprises, LP, Real Party in Interest) (2019) ____ Cal.App.5th ____.

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In an opinion filed November 26, and ordered published on December 23, 2019, the Third District Court of Appeal partially reversed a judgment rejecting a labor union’s CEQA challenges to the EIS/EIR for a geothermal power plant project on federal land in Mono County.  Russel Covington, et al v. Great Basin Unified Air Pollution Control District, et al. (Orin 50 LLC, et al, Real Parties in Interest) (2019) ____ Cal.App.5th ____.

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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) ___ Cal.App.5th ___, 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.

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Despite well-reasoned requests for depublication made by the City of Los Angeles, the California Building Industry Association (CBIA), the California State Association of Counties (CSAC) and the League of California Cities (League), the Second District’s questionable and controversial decision in Stopthemillenniumhollywood.com, et al. v. City of Los Angeles, et al. (2019) 39 Cal.App.5th 1 remains “on the books” as published precedent.  The California Supreme Court on November 26, 2019 entered its order denying the depublication requests and declining to review the matter on its own motion.  Justice Corrigan and Justice Kruger voted to depublish the opinion, about which I previously blogged here.

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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.

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In an opinion filed September 6, and later ordered published on October 7, 2019, the First District Court of Appeal (Div. 4) affirmed the trial court’s judgment denying plaintiff groups’ writ petition challenging Sonoma County’s use permit and related mitigated negative declaration (MND) for a winery project in the County’s rural Knights Valley area.  Maacama Watershed Alliance, et al v. County of Sonoma, et al. (James Bailey, Knights Bridge Vineyards, LLC, Real Parties in Interest) (2019) _____ Cal.App.5th _____.

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In an opinion filed September 5, and later certified for partial publication on October 3, 2019, the Third District Court of Appeal affirmed a judgment upholding the City of Chico’s EIR and related statement of overriding considerations for Walmart’s project to expand an existing store, add a gas station, and create two new outparcels for future commercial development.  Chico Advocates for a Responsible Economy v. City of Chico (Walmart Inc., Real Party in Interest) (2019) ___ Cal.App.5th ___.  The published portion of the Court’s opinion rejects plaintiff/appellant CARE’s challenges to the EIR’s “robust 43-page urban decay analysis,” holding as a matter of law that “the potential loss of close and convenient shopping is not an environmental issue that must be reviewed under CEQA” and that the EIR’s methodology for analyzing urban decay was supported by substantial evidence.  The unpublished portion of the opinion (which won’t be further discussed in detail) held that the City’s statement of overriding considerations was supported by substantial evidence, did not need to “describe in detail the weight accorded to the various aspects of the agency’s balancing of competing public objectives,” and did not need to include findings “reconciling” the project approval with the CIty’s rejection of an earlier, materially different expansion project in 2009.

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In a 68-page published opinion filed September 27, 2019, the Fourth District Court of Appeal (Div. One) affirmed the trial court’s judgment rejecting a plaintiff group’s numerous challenges to the California Coastal Commission’s (CCC) certification of a port master plan amendment by the San Diego Unified Port District (Port).  The amendment allows expansion of the San Diego Convention Center by the City of San Diego (City) and of the adjacent Hilton San Diego Bayfront hotel by One Park Boulevard, LLC (One Park).  San Diego Navy Broadway Complex Coalition v. California Coastal Commission, et al. (City of San Diego, et al., Interveners and Appellants) (2019) ___ Cal.App.5th ___.  While the trial court had rejected the statute of limitations defense of indispensable parties/interveners City and One Park and ruled against plaintiff’s Coastal Act and CEQA-based challenges to the CCC’s findings on the merits, the Court of Appeal disagreed with the statute of limitations ruling, and based its affirmance on the primary ground that the claims were time-barred by the Coastal Act’s applicable 60-day statute of limitations because interveners were not timely joined within that limitations period.  It also held plaintiff’s claims lacked substantive merit in any event.

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In a short published opinion filed September 13, 2019, the First District Court of Appeal (Div. 4) affirmed the trial court’s judgment denying a historic preservation group’s mandate petition seeking to compel preparation of an EIR by the California Department of Corrections and Rehabilitation (CDCR or department).  Plaintiff The Lake Norconian Club Foundation (foundation) argued CDCR was required to analyze its decision not to repair and maintain the Lake Norconian Club, an unoccupied and severely deteriorated former luxury resort hotel that sits on CDCR’s property adjacent to a medium-security prison.  The hotel, which once catered to Hollywood stars and sports celebrities, was opened in 1929, closed in 1941, and was thereafter variously used as a military hospital, drug rehabilitation center, and CDCR administrative offices; now vacant, the building is listed on the National Register of Historic Places.  The trial court denied the writ on statute of limitations grounds, but the First District affirmed “on the ground that the department’s inaction is not a project subject to CEQA.”  The Lake Norconian Club Foundation v. Department of Corrections and Rehabilitation (City of Norco, Real Party in Interest) (2019) ___ Cal.App.5th ___.

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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) ___ Cal.App.5th ___.  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.

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