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On January 17, 2017, the California Supreme Court denied the losing appellants’ petition for writ of supersedeas, stay request, and petition for review of the First District Court of Appeal’s decision in Mission Bay Alliance v. Office of Community Investment and Infrastructure, et al. (GSW Arena LLC, et al., Real Parties in Interest) (2016) 6 Cal.App.5th 160; Supreme Court Case No. S239371.  This action effectively ends the CEQA challenge to the Golden State Warriors San Francisco Arena project brought by a coalition of its opponents and removes the major legal hurdle to its construction.  Consistent with the required “fast track” CEQA review of and litigation over this Governor-certified “environmental leadership development project,” the high court’s action came relatively quickly – just a month and a half after the filing of the Court of Appeal’s decision.  My detailed post on the Court of Appeal’s published decision in the case, which now stands undisturbed as legal precedent, can be found here.
Continue Reading California Supreme Court Denies Review in Expedited CEQA Litigation over Golden State Warriors Arena Project Approval

On January 11, 2017, the California Supreme Court by unanimous order granted review in yet another CEQA case, Union of Medical Marijuana Patients, Inc. v. City of San Diego (2016) 4 Cal.App.5th 103, Supreme Court Case No. S238563.
Continue Reading Supreme Court Grants Review in Medical Marijuana Case Presenting CEQA “Project” Definition Issues

In an opinion filed December 7, and later ordered published on December 16, 2016, the Fourth District Court of Appeal affirmed a judgment denying a writ petition on the “single legal issue” whether plaintiffs were entitled under Public Resources Code § 21151(c) (and a municipal code section with essentially the same content) to an appeal of a planning commission’s “substantial conformance review” (SCR) determination to the city council.  (San Diegans for Open Government et al v. City of San Diego (Sunroad Enterprises et al, Real Parties in Interest) (4th Dist., Div. 1, 2016 ) 6 Cal.App.5th 995.)  The SCR decision found that changes in an already CEQA-reviewed and approved mixed-use development project were consistent with previous CEQA documents and did not require a new environmental document.  Because such a determination was not one of the decisions expressly listed in Section 21151(c) as appealable of right to the lead agency’s elected decision making body, and there was no independent right to such an appeal order the City’s municipal code, the City properly refused to process plaintiffs’ attempted administrative appeal of the planning commission’s decision.
Continue Reading CEQA Does Not Require Local Lead Agency To Provide For Administrative Appeal To Elected Body of Nonelected Body’s Decision That Project Changes Require No Subsequent Review

In a lengthy published opinion filed November 29, 2016, the First District Court of Appeal rejected all legal challenges to the City of San Francisco’s Final Supplemental Environmental Impact Report (FSEIR) and related land use approvals for a 488,000-square-foot multipurpose event center project on 11 acres in the City’s Mission Bay South redevelopment plan area (the “Project”).  Mission Bay Alliance, et al. v. Office of Community Investment and Infrastructure, et al. (GSW Arena LLC, et al., Real Parties in Interest (2016 1st Dist., Div. 3) 6 Cal.App.5th 160.)  The event center would host home games of the Golden State Warriors NBA basketball team, concerts, conferences, conventions and other sporting and cultural events, and the overall Project would also include “a variety of mixed-use structures, including two 11-story office and retail buildings, parking facilities, and 3.2 acres of open space.”
Continue Reading Slam Dunked! First District Rejects All CEQA And Land Use Challenges To Golden State Warriors Event Center Project And EIR In Expedited Litigation

On November 22, 2016, the California Supreme Court issued a significant Order granting review in Coastal Hills Rural Preservation v. County of Sonoma (2016) 2 Cal.App.5th 1234, and also transferring the matter back to the Court of Appeal (First Appellate District, Div. 1) for reconsideration in light of Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2016) 1 Cal.5th 937, 957-959, fn. 6, and CEQA Guidelines § 15384.  The high court further ordered the First District’s opinion to be depublished, and it is therefore no longer citable as binding legal precedent.  Both orders were unanimous.
Continue Reading Wither Subsequent Review? Supreme Court Again Weighs In On CEQA Subsequent Review Standards Following Negative Declarations – Grants, Retransfers, and Depublishes First District’s Coastal Hills Rural Preservation Decision

On November 7, 2016, the Third District Court of Appeal filed a published opinion mostly upholding the EIR for a 48.75-acre, 328-unit residential infill project (known as McKinley Village) against various CEQA challenges, and finding the Project to be consistent with the City of Sacramento’s general plan.  East Sacramento Partnership for a Livable City v. City of Sacramento (Encore McKinley Village, LLC, Real Party in Interest) (3d Dist. 2016) 5 Cal.App.5th 281.  In a pointed reminder that a perfectly CEQA-compliant EIR for a large infill project is difficult to prepare, however, the Court found merit in a single argument of the petitioner and appellant neighborhood group, ESPLC – its argument that “the EIR ignored [certain] significant traffic impacts.”  Specifically, the EIR failed to adequately support its less-than-significant (LTS) impact conclusion concerning such impacts, in light of a substantial project-caused degradation in level of service (LOS) at affected intersections and streets that was nonetheless compliant with the General Plan’s policy that LOS F was acceptable for the area.  Accordingly, the Court of Appeal reversed the trial court’s judgment upholding the EIR, and ordered it to issue a writ directing the City to set aside its certification and correct this lone deficiency prior to considering recertification.
Continue Reading Sacramento Residential Infill Project EIR Violated CEQA By Basing Less-Than-Significant Traffic Impact Finding Solely On Compliance With General Plan Policy Allowing LOS F

In a 29-page published opinion filed October 14, 2016, the Fourth District Court of Appeal dispensed some good news to municipalities desiring to reasonably regulate retail medical marijuana facilities within their jurisdictional boundaries.  In Union of Medical Marijuana Patients, Inc. v. City of San Diego (4th Dist., Div. 1, 2016) 4 Cal.App.5th 103, Case No. D068185, the Court affirmed the trial court’s judgment denying a writ petition on the basis that the City of San Diego’s ordinance regulating the establishment and location of medical marijuana consumer cooperatives was not a “project” subject to CEQA.
Continue Reading Blowing Smoke About Impacts? Fourth District Rejects Speculative CEQA Challenge to San Diego’s Medical Marijuana Consumer Cooperative Ordinance, Holds Zoning Ordinances Are Not Necessarily CEQA “Projects”

“… like all things in life, project plans are subject to change.”
(Slip Opn. of Kruger, J., p. 4.)

The California Supreme Court provided needed clarification to some aspects of the operation of CEQA’s “subsequent review” rules (Pub. Resources Code, § 21166; CEQA Guidelines, § 15162) in its highly anticipated opinion, filed on September 19, 2016, in Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2016) 1 Cal.5th 937.   CEQA’s subsequent review rules embody CEQA’s concerns for finality and efficiency, and implement a presumption against requiring a subsequent EIR for a modified project that has previously undergone CEQA review – i.e., they  govern whether an EIR will be required, or another type of CEQA document (or no further documentation) will suffice, when changes are proposed in a project for which an initial CEQA review has been completed.  (Slip Opn., p. 12.)  I won’t reiterate this case’s facts and relevant background history (including oral argument and post-argument briefing in the Supreme Court) which can be found (in reverse chronological order) in my prior blog posts of July 8, May 12, May 4, April 26, 2016, and March 25, 2014.  This post focuses on the legal rules and standards announced by the Court and their potentially significant implications for lead agencies and project proponents who consider approval of changes to a development project that has already undergone and survived a full CEQA review.Continue Reading Supreme Court Addresses CEQA Subsequent Review Rules in San Mateo Gardens Case

In the published portion of an opinion filed September 12, 2016, the Fifth District Court of Appeal reversed the trial court’s order taxing costs in the amount of $44,889.71 which were claimed by prevailing real party in interest Wal-Mart in connection with preparation of the administrative record.  The costs were incurred by respondent and lead agency City of Ceres when it directed its outside counsel to prepare the record in a CEQA action challenging a Wal‑Mart Supercenter project, and were reimbursed by real party Wal-Mart pursuant to an agreement with the City that required the project applicant to reimburse it for all expenses arising from legal challenges to the project.  Citizens For Ceres v. City of Ceres (Wal-Mart Stores, Inc., et al., Real Parties in Interest) (2016) 3 Cal.App.5th 237.
Continue Reading Neither CEQA Administrative Record Preparation Statute nor Case Law Precludes Award of Costs to Prevailing Real Party who Reimburses Lead Agency Its Costs of Record Preparation

In a published opinion filed August 31, 2016, the Sixth Appellate District Court of Appeal rejected claims under CEQA and the Surface Mining and Reclamation Act (“SMARA”; Pub. Resources Code, §§ 2700, et seq.), and affirmed the denial of a writ petition challenging Santa Clara County’s 2012 EIR and related approval of a reclamation plan amendment for the Permanente Quarry. Bay Area Clean Environment, Inc. v. Santa Clara County (Lehigh Southwest Cement Company, et al., Real Parties in Interest) (2016) 2 Cal.App.5th 1197, 2016 WL 9540085.  The plan amendment governs (over a 20-year period) the closing and reclaiming of the Quarry, which has conducted limestone and aggregate surface mining operations since 1903 in the unincorporated County.  The Quarry has expanded from about 1,300 acres when the Permanente Corporation purchased it in 1939 to its current 3,510 acres.  It includes a central rock/limestone mining pit, a rock crushing area, and administrative offices all located within the upper portion of the Permanente Creek watershed; the creek flows east and borders the Quarry pit’s south side before leaving the Quarry property and running to the bay.
Continue Reading Sixth District Rejects SMARA And CEQA Challenges To Permanente Quarry Reclamation Plan Amendment And Related EIR