Photo of Arthur F. Coon

Arthur F. Coon is Chair Emeritus 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).

In an opinion on rehearing filed January 18, 2023, the Third District Court of Appeal reissued its previous published opinion in the Save Our Capitol! case (my January 2, 2023 post on which can be found here) with the addition of a few pages of discussion addressing “Relief” inserted at the end of the majority opinion just before its “Disposition.” 

Continue Reading Third District Adds Brief CEQA Severance Analysis After Rehearing In Save Our Capitol! Case, Limits Its Relief To Allow Capitol Annex Demolition To Go Forward

As all CEQA practitioners know, a prospective petitioner in a writ proceeding challenging a CEQA determination must first exhaust available administrative remedies as a prerequisite to filing suit.  But which remedies are subject to that requirement?  That is the question presented in the recent case of American Chemistry Council v. Dept. of Toxic Substances Control (5th Dist. 2022) ___ Cal.App.5th ___, originally filed on November 18, 2022, and certified for publication on December 12, 2022.

The American Chemistry Council case deals with the interplay of CEQA with another statutory scheme, the so-called “Green Chemistry” law (Health & Safety Code, § 25251 et seq.) and its implementing Safer Consumer Products regulations (Cal. Code Regs., tit. 22, § 69501 et seq.), in the context of exhaustion of administrative remedies.  The case illustrates the sometimes perilous position of a CEQA practitioner seeking to satisfy the exhaustion requirement while avoiding the running of the very short statutory limitations period within which a CEQA action must be commenced.

Continue Reading Fatal “Exhaustion”: Fifth District Holds CEQA’s Statute of Limitations Ran Out On Plaintiff’s Claim While Plaintiff Thought It Was Still In Process Of Exhausting Administrative Remedies

While CEQA is a complicated area of law, often criticized as a “plaintiff’s sandbox,” CEQA litigation is not a “free-for-all” immune from malicious prosecution actions when it is unsuccessfully pursued with malice and without probable cause.  Such is the teaching of the First District Court of Appeal’s December 28, 2022 published opinion in Charles Jenkins et al v. Susan Brandt-Hawley et al (1st Dist., Div. 2, 2022) ___ Cal.App.5th ___, which affirmed the trial court’s order denying an anti-SLAPP motion and allowing a malicious prosecution action to proceed against a prominent CEQA attorney and her law firm.

Continue Reading When CEQA Litigation Turns Tortious: First District Affirms Order Denying Anti-SLAPP Motion, Allows Malicious Prosecution Action To Proceed Against Counsel Who Brought Unsuccessful CEQA Challenge To Single-Home Project

In a published opinion filed December 6, 2022, the Third District Court of Appeal reversed in part and affirmed in part the trial court’s judgment denying writ petitions in consolidated actions challenging the EIR for a major state government project affecting the Historic State Capitol Building and Annex in Sacramento.  Save Our Capitol! v. Department of General Services (Joint Committee On Rules of the California State Senate and Assembly, Real Party in Interest)/Save the Capitol, Save the Trees v. Department of General Services, et al. (2022) __ Cal.App.5th __.  In the project’s final iteration, Defendant/Respondent Department of General Services and Real Party/Respondent Joint Committee, etc. (collectively, “DGS”) proposed to demolish the Historic Capitol’s 325,000 square-foot Annex, replace it with a larger 525,000 square-foot Annex building, construct a 40,000 square-foot underground visitor center attached to the Historic Capitol’s west side, and construct a 150-space underground parking garage east of the new Annex.  While rejecting many of plaintiffs’ CEQA challenges to the project’s final EIR (FEIR), the Court of Appeal found merit in claims that the EIR’s project description, analyses of impacts to historical resources and aesthetics, and alternatives analysis were deficient.  Accordingly, it directed issuance of a writ vacating the EIR certification and project approval and directing DGS to revise and recirculate the EIR’s deficient sections before again considering project approval.

Continue Reading A “Capitol” Offense: Third District Holds State Capitol Building Annex/Visitor Center Project EIR Violated CEQA Due To Inadequate Project Description And Analyses Of Historical Cultural Impacts, Aesthetics, And Project Alternatives

In an opinion filed on November 14, and later certified for publication on December 13, 2022, the First District Court of Appeal (Div. 3) affirmed a Sonoma County Superior Court judgment upholding the EIR for a 180-unit apartment complex proposed on a 15.45-acre parcel of vacant land along the Petaluma River.  Save North Petaluma River and Wetlands v. City of Petaluma (J. Cyril Johnson Investment Company, Real Party in Interest) (2022) ___ Cal.App.5th ___.  The issues considered on appeal involved the adequacy of the EIR’s environmental “baseline” for its analysis of potential special status species impacts and the adequacy of its analysis of alleged public safety/emergency evacuation impacts.

Continue Reading First District Rejects CEQA Challenges To EIR For Petaluma River Apartment Project, Upholds Special Status Species Baseline And Public Safety/Emergency Access Impacts Analyses As Supported By Substantial Evidence

“Yes, Virginia, there is a Santa Claus.” – Editorial by Francis Pharcellus Church first appearing in New York newspaper The Sun on September 21, 1897

In keeping with the spirit of the holiday season, it is entirely fitting that some cynical and unbelieving jurisdictions be gifted with a published judicial reminder that CEQA really does exist – and that its required procedures must be scrupulously followed.  In an opinion filed November 18, and later ordered published on December 5, 2002, the First District Court of Appeal (Div. 4) bestowed such a gift upon the City and County of San Francisco (“City”), although the “jury is out” on whether the latter lead agency will receive it in the proper spirit or view it as humbug and the proverbial lump of coal.  Saint Ignatius Neighborhood Association v. City and County of San Francisco (2022) ___ Cal.App.5th ___.

Continue Reading “Yes, San Francisco, There Is A CEQA”: First District Reverses Judgment Upholding City’s Categorical Exemption Determinations For Project To Add Four 90-Foot Tall Light Standards To High School Stadium In Residential Neighborhood

On December 5, 2022, the real party in interest (Arakelian Enterprises, Inc. dba Athens Services) and respondent City of Thousand Oaks both filed petitions for review in the California Supreme Court in G.I. Industries v. City of Thousand Oaks (2022) ___ Cal.App.5th ___.  (My recent post on the Second District Court of Appeal’s modified opinion order, which contains a link to my original post on the case, can be found here.)

Continue Reading Petitions for Review Filed In Brown Act/CEQA Exemption Case

The Second District Court of Appeal (Div. 6) has issued a November 22, 2022 Order modifying its opinion and denying rehearing in G.I. Industries v. City of Thousand Oaks (2022) ___ Cal.App.5th ___, without changing the judgment.  That case expanded existing law under the Brown Act and CEQA by holding, on an issue of first impression, that a public agency must agendize a staff determination that a project is CEQA-exempt as an item of business for the meeting on project approval.  (My October 31, 2022 post on the case can be found here.)

Continue Reading Second District Denies Rehearing and Modifies Opinion In Brown Act/CEQA Exemption Case; CSAC and Solano County Seek Depublication In Supreme Court

“We didn’t start the fire….”

-Billy Joel

Wildfires are an unfortunate reality of life in California and have become of increasing concern over the past several years.  Eight of the ten largest wildfires in the state since 1932 have occurred in the last decade (five of which took place in 2020 alone).

Continue Reading Attorney General’s Guidance On “Best Practices” For CEQA Analysis Of And Mitigation For Wildfire-Related Impacts Is Long On Litigation And Policy Advocacy, Short On Neutral Legal Analysis

In a published opinion filed October 26, 2022, the Second District Court of Appeal (Div. 6) appears to have significantly expanded the reach of both the Brown Act and the procedural requirements of CEQA in holding, on an issue of first impression, that a public agency must list its staff’s determination that a project is exempt from CEQA as an item of business on the agenda for the meeting at which it considers the project approval. G.I. Industries v. City of Thousand Oaks, et al (Arakelian Enterprises, Inc., Real Party In Interest) (2022) __ Cal.App.5th __. The opinion thus extends San Joaquin Raptor Rescue Center v. County of Merced (2013) 216 Cal.App.4th 1167 (“San Joaquin Raptor”), which held that a public agency’s decision to adopt a CEQA document, such as an EIR or negative declaration, must be described as a distinct item of business under the Brown Act when it is to be considered at a public hearing, to the distinct context of CEQA-exempt projects.

Continue Reading Second District Holds Brown Act Requires Lead Agency To List CEQA Exemption As Item of Business On Agenda For Public Meeting When Project Already Found Exempt By Staff Is Considered For Approval