In an opinion filed April 27, and certified for partial publication on May 19, 2023, the First District Court of Appeal (Div. 1) vacated the trial court’s order granting a writ directing the University of California’s Regents (Regents) to decertify a 2018 Supplemental EIR (2018 SEIR) for a campus development project and to suspend increases in student enrollment pending CEQA compliance; it further directed the trial court to dismiss the petition, which it held was largely mooted by the Regents’ certification of a 2021 EIR and the passage of CEQA amendments via SB 118, events that combined to preclude the Court’s ability to grant effective relief. Save Berkeley’s Neighborhoods v. The Regents of the University of California, et al. (2023) ___ Cal.App.5th ___.
Sixth District Holds Downtown San Jose Office Project FSEIR’s Brief Discussion And Rejection of “Compensatory” Mitigation for Historic Buildings Razed By Project Was Informationally Adequate Under CEQA Based On City’s Unchallenged Factual Finding That No Similar Historic Buildings Existed Elsewhere In City’s Downtown
In an opinion filed April 18, and belatedly ordered published on May 10, 2023, the Sixth District Court of Appeal upheld the City of San Jose’s (City) certification of a final Supplemental EIR (FSEIR) for development of three high-rise office towers (the “Project”) on an eight-acre downtown site containing several historic structures which the Project required to be demolished. Preservation Action Council of San Jose v. City of San Jose (SJ Cityview, LLC, Real Party in Interest) (2023) ___ Cal.App.5th ___. In affirming the trial court’s judgment denying Preservation Action Council of San Jose’s (Appellant) petition for writ of mandate, the Court rejected Appellant’s arguments that the FSEIR failed to adequately analyze and provide compensatory mitigation for the historic buildings and failed to adequately respond to comments on those issues.
California Supreme Court Grants Review In Controversial “People’s Park”/Student Housing CEQA Case
On May 17, 2020, the California Supreme Court granted review of the First District Court of Appeal’s controversial and much criticized published decision in Make UC a Good Neighbor v. Regents of University of California (2023) 88 Cal.App.5th 656, which held the University’s long-range campus development plan (LRDP) EIR inadequate, throwing a monkey wrench into its efforts to redevelop and build much-needed student and homeless housing at the historic People’s Park site. (My March 3, 2023 post on the Court of Appeal’s decision can be found here.)
No Room At the Table: Second District Upholds Denial of Intervention in CEQA/Coastal Act Litigation Where Nonparties Failed to Make “Compelling Showing of Inadequate Representation”.
In consolidated litigation challenging on CEQA and Coastal Act grounds the Coastal Commission’s amendment of a coastal development permit (CDP) to (among other new use restrictions) completely phase out off-highway vehicle (OHV) use at the apparently inaptly-named Oceano Dunes State Vehicular Recreation Area (Oceano Dunes), the Second District Court of Appeal (Div. 6) affirmed the trial court’s order denying a motion to intervene filed by a number of interested nonparties (the Northern Chumash Tribal Council, Oceano Beach Community Association, and Center for Biological Diversity, or “Appellants”). Friends of Oceano Dunes, et al. v. California Coastal Commission, et al. (2023) 90 Cal.App.5th 836. In so doing, the Court applied and explained numerous principles governing both motions for intervention as of right and motions for permissive intervention.
Slapping Down An Anti-SLAPP: First District Holds Next-Door Neighbor Opponents Of Residential Renovation Project And Related CEQA Compliance In City’s Administrative Proceedings Were Properly Named As Real Parties In Interest In Project Proponent’s Subsequent Mandate Action Challenging City’s Project Denial
In a published opinion filed April 14, 2023, the First District Court of Appeal (Div. 3) taught some interesting procedural lessons in a CEQA/writ of mandate case arising from the City of San Francisco’s denial of a single-family home renovation project proposed by one Durkin and his LLC (Appellants) that was successfully challenged in the City’s administrative proceedings by a neighboring owner (Kaufman). Christopher Durkin v. City and County of San Francisco, et al. (Philip Kaufman, Real Party in Interest) (2023) 90 Cal.App.5th 643.
That Dam Case (Again): Third District Upholds Oroville Hydropower Facilities Relicensing EIR Against Numerous CEQA Challenges
On April 7, 2023, the Third District Court of Appeal filed a lengthy published opinion – the latest installment in one of the longer ongoing CEQA battles in recent memory – affirming a judgment finding an EIR for the Federal relicensing of Oroville Dam and related hydropower facilities legally adequate. County of Butte and County of Plumas, et al v. Dept. of Water Resources (2023) ___ Cal.App.5th ___.
CEQA Does Not Apply To Investor-Owned Public Utility’s Exercise Of Power Of Eminent Domain To Acquire Electric Facilities Maintenance Easement
In a published opinion filed March 2, 2023, the Fifth District Court of Appeal held that where no governmental approvals were required, an investor-owned public utility was not required to comply with CEQA prior to exercising its eminent domain power by filing an action to condemn a maintenance/access easement in connection with its existing electrical power transmission facilities located on and traversing private property. Robinson v. Superior Court of Kern County (5th Dist. 2023) 88 Cal.App.5th 1144. While most of the opinion involved eminent domain issues irrelevant to this blog, the pertinent issue here is a simple definitional one: CEQA applies only to “discretionary projects proposed to be carried out or approved by public agencies” (Pub. Resources Code, § 21080(a)), and CEQA’s definition of “public agency” includes only state agencies, boards and commissions, and local and regional agencies. (Pub. Resources Code, § 21063; CEQA Guidelines, § 15379.)
First District Affirms Judgment Rejecting All CEQA Challenges To Oakland A’s Ballpark Development EIR Except Improper Deferral of Wind Impacts Mitigation
In a 72-page published opinion filed March 30, 2023, the First District Court of Appeal (Div. 4) affirmed in full the trial court’s judgment, which upheld the EIR for the Oakland Waterfront Ballpark District Project (project) with the sole exception of its wind mitigation measure. East Oakland Stadium Alliance, et al v. City of Oakland, et al (Athletics Investment Group, et al, Real Parties in Interest) (2023) 89 Cal.App.5th 1226. In doing so, the Court’s lengthy opinion touched on and analyzed numerous interesting and important CEQA topics.
CEQA Updates: Supreme Court Depublishes High School Stadium Light Standard Exemption Case; Second District Modifies Pacific Palisades Opinion With No Change In Judgment
On March 22, 2023, the California Supreme Court granted the City of San Francisco’s stand-alone depublication request in (and declined to review on its own motion) the First District Court of Appeal’s (Div. 4) decision in Saint Ignatius Neighborhood Association v. City and County of San Francisco. The depublished opinion reversed a trial court decision that upheld the City’s use of CEQA Guidelines Class 1 (existing facilities) and 3 (small structures) categorical exemptions for a high school athletic stadium project involving the installation of four 90-foot tall light standards to significantly expand nighttime stadium use. Officially, the Supreme Court’s depublication order is not to be construed as expressing any opinion on the merits, and the Court of Appeal’s decision remains fully binding on the parties but cannot be cited as precedent. My 12/7/22 post on the case can be found here.
Second District Affirms Judgment Upholding Water Code CEQA Exemption, Rejects Plaintiff’s Attempt To Extend CEQA Review And Findings Requirements To Regional Water Board’s Approval Of Waste Discharge Permits
On February 27, 2023, the Second District Court of Appeal (Division One) filed its published decision in Los Angeles Waterkeeper v. State Water Resources Control Board (2023) 88 Cal.App.5th 874, a case mainly focused on water law but which also has some significant CEQA implications. Briefly put, the petitioner in Los Angeles Waterkeeper attempted to bypass a statutory limitation on CEQA review through an action that would, if successful, have resulted in the imposition of additional substantive and procedural environmental review requirements on certain projects for which no EIR is required. As explained below, the Second District rejected this invitation to expand CEQA’s reach.