While “agree[ing] with appellant that Telegraph Hill is outstanding and unique in a city of outstanding and unique places[,]” the First District Court of Appeal nonetheless affirmed the trial court’s order denying plaintiff/appellant neighborhood group’s mandamus petition challenging the City of San Francisco’s approval of a 3-unit condominium project there on CEQA and general plan consistency grounds. Protect Telegraph Hill v. City and County of San Francisco (2017) 16 Cal.App.5th 261. In a 15-page opinion originally filed September 14, but belatedly ordered published on October 13, 2017, the Court upheld the City’s findings that the project, which involved renovation of an existing deteriorated small cottage and construction of a new 3-dwelling unit residential structure, was categorically exempt from CEQA and consistent with the City’s general plan and planning code.
On October 15, 2017, Governor Edmund G. Brown, Jr. sent a veto letter to California State Assembly Members, returning a controversial and flawed proposed land use bill – AB 890 – without his signature. My partner Bryan Wenter and I authored a post here last month detailing the many problems we saw with the bill. (See “The Opposite of CEQA Reform: Legally Flawed AB 890 Would Expand Opportunities For CEQA Litigation Abuse While Abridging Constitutional Local Initiative Rights,” by Arthur F. Coon and Bryan W. Wenter, AICP, posted September 19, 2017.)
Fortunately, Governor Brown was receptive to the bill’s many critics, and struck a blow for local land use control, local initiative rights, CEQA reform and commence sense by vetoing it. His short letter to Assembly members, which can be found here, states in pertinent part that “[i]nstead of the piecemeal approach taken in this bill, I prefer a more comprehensive CEQA review, which takes into account both the urgent need for more housing and thoughtful environmental analysis. Hear, hear!
In a published opinion filed September 19, 2017, the First District Court of Appeal reversed the trial court’s denial of a writ petition challenging defendant California Department of Pesticide Regulation’s (“Department”) approval of label amendments for two pesticides containing an active ingredient toxic to honeybees. The Court held the Department’s environmental review was deficient in failing to adequately address feasible alternatives, lacking adequate baseline information, and lacking an adequate cumulative impacts analysis, and that its public reports were so inadequate and conclusory as to render public comment effectively meaningless and require recirculation. Pesticide Action Network North America v. California Department of Pesticide Regulation (Valent U.S.A. Corporation, et al., Real Parties In Interest) (1st Dist., Div. 3, 2017) 15 Cal.App.5th 478.
Continue Reading First District Holds CEQA’s Substantive Requirements Apply to Environmental Documentation of State Agency Acting Under Certified State Regulatory Program, Directs Issuance of Writ Setting Aside Inadequately Reviewed Pesticide Label Approvals
When a lead agency finds a project approval to be categorically exempt from CEQA, this determination at the initial step of CEQA’s multi-tiered process necessarily includes an implied finding that no exceptions to the categorical exemption are applicable. A party challenging an agency’s categorical exemption determination on the basis that the “unusual circumstances” exception applies generally has the burden to show both (1) unusual circumstances (i.e., the project has some feature distinguishing it from others in the exempt class, such as size or location), and (2) “a reasonable possibility of a significant effect [on the environment] due to [those] unusual circumstance[s].” (Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1105, 1115.)
But how does a court review an “unusual circumstances” challenge to a categorical exemption where the agency has made no express findings on these elements and must thus rely on implied findings to uphold its determination? In a published opinion filed September 18, 2017, the First District Court of Appeal answered this important question in the course of affirming a judgment denying a writ petition that challenged the City of South San Francisco’s (City) conditional-use permit (CUP) for conversion of an office building to a Planned Parenthood medical clinic. Respect Life South San Francisco v. City of South San Francisco (Planned Parenthood Mar Monte, Inc., Real Party In Interest) (1st Dist., Div. 1, 2017) 15 Cal.App.5th 449. While the City’s categorical exemption in this case was upheld based on an implied finding, the opinion’s most important takeaway for local agencies (and project proponents) is that reliance on such a finding presents far more litigation risk than if appropriate express findings are made.
Continue Reading First District Upholds CEQA Categorical Exemption for Approval of Planned Parenthood Clinic in City of South San Francisco, Clarifies Implied Finding of No Exceptions is Analyzed for Record Support on Narrowest Possible Ground
AB 890 (Medina – D), recently sent to Governor Brown for action by October 15, seeks to amend Government Code § 65867.5 and to add §§ 65363 and 65850.10 to prevent development agreements and certain types of land use planning and zoning legislation from being enacted by local voter-sponsored land use initiatives. The bill would substantially abridge the local electorate’s constitutionally guaranteed and reserved initiative power by purporting to exclusively “delegate” specified exercises of legislative authority to local governing bodies – city councils and county boards of supervisors – and thus concomitantly eliminating local voters’ long-held and until now unassailable rights to directly legislate in such areas pursuant to California Constitution, Article II, Section 11, and the procedures of the Elections Code.
The bill’s stated purpose is to ensure the enumerated types of local development proposals are subjected to CEQA review – and, implicitly, to provide expanded opportunities for litigation under a flawed CEQA statute the legislature continues to refuse to meaningfully reform – by annulling the constitutional right of local voters to directly legislate in these areas, a presently enjoyed and “jealously guarded” right the exercise of which is not currently subject to CEQA review. Long story short: AB 890 is a bad bill that proposes a cure far worse than the perceived disease. As will be apparent from the discussion of its provisions below, the proposed law is deeply flawed, of doubtful constitutionality, and the opposite of CEQA reform.
In an opinion originally filed on July 31, and belatedly ordered partially published on August 24, 2017, the Sixth District Court of Appeal affirmed the trial court’s judgment denying a writ petition brought by a citizens group (Highway 68) on CEQA and Planning and Zoning Law grounds, and upheld the Monterey County Board of Supervisors’ 2012 approval of a shopping center project. The Highway 68 Coalition v. County of Monterey, et al. (Omni Resources LLC, Real Party in Interest) (6th Dist. 2017) 14 Cal.App.5th 883.
In relevant (published) part, the Court upheld the trial court’s interlocutory remand to the County’s Board of Supervisors to clarify or make further findings required to demonstrate the project’s consistency with certain provisions of County’s General Plan requiring express, evidence-supported findings that the project has “a long-term sustainable water supply”; in so doing it rejected arguments that this procedure violated CEQA’s remedies statute (Public Resources Code, § 21168.9), which generally prescribes writ relief for CEQA violations. (The much lengthier, unpublished portion of the Court’s opinion, which will not be addressed in detail in this post, rejected Highway 68’s remaining non-general plan CEQA arguments alleging: violations of due process in the remand proceedings; CEQA violations in the EIR’s analysis of the Project’s water rights, and water balance, demand and recharge scheme, groundwater/soil contamination, and traffic analysis methodology; and violation of CEQA’s prohibition on “segmentation” or “piecemealing” of environmental review.)
Continue Reading Sixth District Holds Project’s Consistency with General Plan Is Not a CEQA Issue, Upholds Trial Court’s Interlocutory Remand for County Board to Clarify Consistency Findings, and Affirms Judgment Denying Writ Petition Alleging General Plan and CEQA Challenges to Shopping Center Project
In a published decision filed August 8, 2017, the Fourth District Court of Appeal affirmed the trial Court’s judgment dismissing a CEQA action brought by two individuals (“Appellants”) against the Mt. San Jacinto Community College District (“District”). Bridges v. Mt. San Jacinto Community College District (Riverside County Regional Park & Open- Space District, Real Party in Interest) (4th Dist. 2017) 14 Cal.App.5th 104. Appellants challenged the District’s entry into a purchase agreement to buy from a regional park district a plot of vacant land for potential future use as a new campus, alleging this action violated CEQA because the District had not yet prepared an EIR for the potential new campus project. (The District was in the process of preparing an EIR, during the pendency of other litigation over an earlier option agreement on the property, but it “paused” that process due to the other litigation while determining it would complete the EIR before entering into escrow on the property.) Appellants also claimed the District violated CEQA by failing to adopt local CEQA implementing guidelines.
The Court of Appeal held Appellants failed to exhaust their administrative remedies prior to filing suit or to demonstrate any excuse for not doing so; alternatively, it held that their claims lacked substantive merit.
On July 26, 2017, the California Supreme Court issued its order denying the losing appellants’ (Sierra Club and Center for Biological Diversity) request for depublication of the opinion in Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11, and also declined to review the case on its own motion, bringing the litigation to a final conclusion. The Court’s docket entry reflects that Justice Kruger was absent and did not participate in the matter.
My post analyzing the Court of Appeal’s opinion, which remains a published precedent as a result of the Supreme Court’s action, can be found here, and my post on the depublication request and related letter briefing can be found here.
On June 16, 2017 – without seeking either rehearing in the First District Court of Appeal or review by the Supreme Court – losing appellants Sierra Club and Center for Biological Diversity filed a letter asking the Supreme Court to depublish the First District’s (Division 1) recent opinion in Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11 (“Sierra Club”). The Supreme Court on the same day extended its otherwise soon-to-expire time to order review of the case on its own motion to August 21, 2017.
In a well-researched and well-reasoned opinion resulting from extensive briefing (including supplemental briefing) from all parties, Sierra Club affirmed the trial court’s denial of appellants’ writ petition challenging the Sonoma County Agricultural Commissioner’s issuance of a 54-acre vineyard development permit, as a ministerial approval without CEQA review, under the detailed standards and controls of the County’s vineyard development and erosion control (aka “VESCO”) ordinance. My blog post analyzing this significant case (in which I represent real party Ohlson Ranch) can be found here.
When all was said and done, it was a case of “same wine, different bottle” for Defendant and Appellant San Mateo Community College District (“District”) after the First District Court of Appeal’s published May 5, 2017 decision, following remand from the California Supreme Court, in Friends of the College of San Mateo Gardens v. San Mateo Community College District, et al. (1st Dist., Div. 1, 2017) 11 Cal.App.5th 596. While the District’s project changes to demolish its San Mateo College Building 20 complex, which was formerly slated for renovation, were held not to result in an “entirely new” project for CEQA review purposes because the original MND retained informational relevance, the District’s Addendum to that MND was again held by the Court of Appeal to constitute an inadequate environmental review document for the modified project under CEQA “because there is substantial evidence to support a fair argument that the project changes might have a significant effect on the environment.”
As this is my seventh blog post on this important litigation, I won’t reiterate the case’s facts. My post on the Supreme Court’s opinion ((2016) 1 Cal.5th 937) can be found here. The facts and other relevant information concerning the case can be found in my posts dated July 8, May 12, May 4 and April 26, 2016, and March 25, 2014.
Continue Reading No Surprises Here: First District Applies CEQA Subsequent Review Standards Mandated by Supreme Court on Remand, Again Affirms Judgment for Petitioner in Friends of the College of San Mateo Gardens Litigation