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 35-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 a partially published opinion filed on September 7, 2023, the Third District Court of Appeal affirmed a judgment denying a CEQA challenge to Sacramento County’s approval of a mixed-use development project known as the Mather South Community Master Plan (the “project“); if implemented, the project would result in, inter alia, up to 3,522 residential dwelling units; 225,000 square feet of retail space; 49 acres of environmental education campus and research and development park uses; two elementary schools; and about 200 acres of parkland and open space areas on an 848-acre site. The issues on appeal were limited to the adequacy of certain aspects of the project EIR’s analyses of GHGs and criteria air pollutants. Tsakopoulos Investments, LLC v. County of Sacramento, et al. (Mather South, LLC, et al, Real Parties) (2023) 95 Cal.App.5th 280. (The unpublished portion of the opinion: (1) upheld the EIR’s qualitative analysis concluding that, with compliance with the State’s Low Carbon Fuel Standard and other air quality mitigation measures, construction-related GHG impacts would not be significant; and (2) concluded the EIR adequately explained, in compliance with the Supreme Court’s decision in Sierra Club v. County of Fresno (2018) 6 Cal.8th 502, why it was not feasible to correlate the level of the project’s air emissions to specific human health impacts from the project. In keeping with this blog’s practice, this post will not further discuss these unpublished portions of the Court’s opinion, except to note that they appear worthy of publication, and that the Court’s docket reflects that a request to publish was filed by Remy Moose Manley LLP on September 18, 2023. So stay tuned on that front…)Continue Reading Third District Affirms Judgment Denying CEQA Writ Petition Challenging Sacramento County’s Approval of Mather South Community Master Plan, Issues Narrow Holding Rejecting Challenges to County’s GHG Thresholds Methodology In Partially Published Opinion

On August 10, 2023 the Sixth District Court of Appeal filed its published opinion in Santa Rita Union School District v. City of Salinas (2023) 94 Cal.App.5th 298.  On September 7, 2023, it filed an Order slightly modifying its opinion without modifying the judgment and denying rehearing.  The case concerns the certification of an EIR for the “West Area Specific Plan” in and by the City of Salinas, and claims by two school districts in the City that asserted perennial underfunding meant that the EIR failed to adequately address school-related impacts.  While the trial court agreed in part, granting narrow writ relief enjoining future entitlements while leaving the specific plan approval in place, the Sixth District did not, holding that the districts’ expressed concerns were speculative in nature and need not have been evaluated in the EIR.Continue Reading Sixth District Reverses Judgment Finding Specific Plan FEIR Inadequate For Failure To Adequately Analyze And Respond To Comments Regarding School Facilities-Related Impacts; Court Of Appeal Holds FEIR Was Adequate In All Respects And Was Not Required To Speculate Regarding Possible Environmental Impacts From Uncertain Future School District Decisions Made To Accommodate Increased Enrollment Should Funds Prove Unavailable To Construct New Schools Contemplated In Plan

On September 7, 2023, Governor Newsom signed into law AB 1307, urgency legislation which took effect immediately and added to the Public Resources Code a new Section 21085, which reads: “For purposes of this division, for residential projects, the effects of noise generated by project occupants and their guests on human beings is not a significant effect on the environment.”Continue Reading Recent Legislation Brings Incremental CEQA Reform

“I fought the law and the law won” – The Crickets

In an opinion filed July 19, and later ordered published on August 16, 2023, the Second District Court of Appeal (Div. 6) reversed the trial court’s grant of a preliminary injunction in a CEQA action enjoining the Santa Barbara County Road Commissioner from enforcing public laws by removing unpermitted encroachments from a public right-of-way.  Christopher Anderson, et al. v. County of Santa Barbara, et al. (2023) 94 Cal.App.5th 554. The public officer’s law enforcement actions were held to be exempt from CEQA; to have independent utility apart from any alleged larger, “piecemealed” project evading CEQA review; and not to be subject to the “unusual circumstances” exception to applicable categorical exemptions.  While the Court was careful to fully analyze all of petitioners’ CEQA arguments, its opinion also offered numerous other reasons why the trial court erred and exceeded its lawful authority under applicable legal principles in issuing the preliminary injunction.Continue Reading Second District Reverses Preliminary Injunction, Holds CEQA Cannot Trump Santa Barbara County’s Authority To Remove Unpermitted Encroachments Placed In Public Right-Of-Way By Adjacent Landowners

In a published opinion filed August 14, 2023, the Third District Court of Appeal reversed a judgment that denied a petition for writ of mandate challenging the State Department of Public Health’s (Department) approval of Real Party in Interest Harm Reduction Coalition of Santa Cruz County’s (real party) needle exchange program.  Grant Park Neighborhood Association Advocates v. Department of Public Health, et al. (2023) 94 Cal.App.5th 478.  In ordering a writ to issue to set aside the approval, the Court of Appeal agreed with petitioner and appellant Grant Park’s first three arguments based on the Department’s prejudicial violations of Health and Safety Code § 121349’s required procedures; it declined to reach appellant’s separate CEQA argument seeking the same relief, however, since it had already granted all requested relief under the other statutory provisions.  However – and as most relevant to this blog – the Court also noted that following the trial court’s judgment the Legislature enacted a 2021 statutory amendment exempting the Department’s approval of needle exchange operations from CEQA.Continue Reading Third District Declines To Reach CEQA Exemption Claim In Reversing On Other Grounds Judgment Upholding State Department of Public Health’s Approval of Santa Cruz County Needle Exchange Program But Notes New Statutory CEQA Exemption Now Exists

In an opinion filed July 19, and ordered published on August 9, 2023, the Fourth District Court of Appeal (Div. 1) reversed a trial court order denying the City of San Diego’s (City) request to discharge a peremptory writ of mandate issued under CEQA that ordered the City to set aside three resolutions approving a set of neighborhood utility wire undergrounding projects.  Because the writ did nothing more than order the approvals set aside, and the City’s return demonstrated full compliance with that CEQA mandate, the trial court exceeded its jurisdiction and abused its discretion in retaining continuing jurisdiction and failing to discharge the writ.  McCann v. City of San Diego (2023) 94 Cal.App.5th 284 (“McCann II”). Continue Reading CEQA Writ Simple: Fourth District Holds Trial Court Erred In Retaining Continuing Jurisdiction And Not Discharging Peremptory Writ That Ordered Only Set Aside Remedy Where Lead Agency’s Return Demonstrated Full Compliance

On July 7, 2023, following a request for publication made on behalf of the California Building Industry Association, the Building Industry Association of the Bay Area, and the California Business Properties Association, the Fourth District Court of Appeal ordered published its decision originally filed on June 8, 2023, affirming the trial court’s judgment upholding a Newport Beach multifamily project approval against various CEQA challenges.  Olen Properties Corp. v. City of Newport Beach (2023) 93 Cal.App.5th 270.Continue Reading Fourth District Belatedly Publishes CEQA Opinion Upholding City of Newport Beach’s Approval of Multifamily-Housing Development Pursuant To Addendum To 2006 EIR For Larger Mixed-Use Development

In an opinion filed June 28, 2023, and later ordered published on July 25, 2023, the Second District Court of Appeal (Div. 5) affirmed a judgment granting a writ of mandate setting aside (1) the City of Los Angeles’ (City) approval of a 10-story hotel project (with three levels of subterranean parking) to be located on a half-acre site in the Hollywood Community Plan area, and (2) the City’s accompanying determination that the hotel project was exempt under CEQA’s Class 32 categorical exemption for infill projects.  Because the hotel project would result in the demolition of 40 apartments subject to the City’s rent stabilization ordinance (RSO), and the City failed to consider whether it was consistent with “all applicable general plan policies” – including Housing Element policies to preserve affordable housing – the record failed to contain substantial evidence supporting City’s use of the exemption.  United Neighborhoods for Los Angeles v. City of Los Angeles (Fariborz Moshfegh, et al., Real Parties in Interest) (2023) 93 Cal.App.5th 1074.Continue Reading Second District Affirms Judgment Voiding CEQA Infill Exemption For Hollywood Hotel Project That Would Demolish Affordable Housing Units Because City Deemed Inapplicable And Never Considered Project’s Consistency With General Plan Housing Element Policies To Preserve Affordable Housing

On July 10, 2023, Governor Newsom signed into law a number of bills aimed at streamlining and accelerating the construction of critical infrastructure projects needed to achieve California’s ambitious climate and clean energy goals. Among the many bills was SB No. 149, CEQA legislation that amended Public Resources Code §§ 21167.6, 21181, 21183, 21189.1, and 21189.3; added Chapter 7 (commencing with § 21189.80); and became effective immediately as an urgency measure “[t]o promote environmental protection and safeguard economic development of California’s diverse public resources and people, and enhance the state’s ability to maximize federal funding to support those efforts[.]”  The full text of SB 149 can be found here.Continue Reading Governor Signs Infrastructure/Budget Legislation Including Significant Revisions To CEQA (SB 149)

In a published opinion filed June 23, 2023, the Fourth District Court of Appeal (Div. 1) affirmed a judgment granting a writ of mandate directing the City of San Diego (City) to set aside its approvals of an ordinance submitting to the voters a ballot measure that would exclude the Midway-Pacific Highway Community Plan Area from the City’s 30-foot height limit on construction of buildings in the Coastal Zone.  The Court held the City could not rely on a 2018 program EIR (PEIR) certified for an update of the area’s community plan as CEQA compliance because the PEIR did not contemplate or analyze the environmental impacts of removing the height limit and substantial evidence supported a fair argument that its removal may have significant unexamined impacts on views.  Save Our Access v. City of San Diego (2023) 92 Cal.App.5th 819.Continue Reading Ocean Views Matter: Fourth District Holds Program EIR For Community Plan Update Didn’t Consider Potentially Significant View Impacts of City of San Diego’s Subsequent Approval of Ballot Measure Excluding Entire Area From City’s 30-Foot Coastal Zone Height Limit