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In an opinion originally filed on September 8, and subsequently modified and certified for partial publication on October 4, 2023, the Sixth District Court of Appeal reversed the trial court’s judgment granting a writ setting aside Monterey County’s issuance of a permit to investor-owned public utility/water supplier California-American Water Company (“Cal-Am”) to construct a desalination plant and related facilities needed as one component of Cal-Am’s Water Supply Project.  Marina Coast Water District v. County of Monterey (California-American Water Company, Real Party in Interest) (2023) 96 Cal.App.5th 46.  On Cal-Am’s appeal, the Court held the trial court erred in finding the County’s statement of overriding considerations prejudicially inadequate for not addressing the uncertainty created by the City of Marina’s (“City”) denial of a coastal development permit (“CDP”) – later granted with conditions by the Coastal Commission on appeal – for the drilling of intake wells in coastal zone aquifers to supply the plant.  On project opponent Marina Coast Water District’s (“MCWD”) cross-appeal, the Court held that County’s decision not to require a subsequent EIR and its statement of overriding considerations were both supported by substantial evidence and (in an unpublished portion of its opinion not further discussed here) that County’s approval did not violate its own general plan.Continue Reading Sixth District Reverses Writ, Upholds Responsible Agency Monterey County’s Approval of Desalination Plant In Reliance on CPUC’s EIR For Multi-Component, Cross-Jurisdictional Water Supply Project; Court Rejects CEQA Challenges Based On County’s Decision Not to Prepare Subsequent EIR and Allegedly Inadequate Statement of Overriding Considerations

In an opinion filed September 13, and modified and certified for publication on October 6, 2023, the Fourth District Court of Appeal (Div. 3) affirmed the trial court’s judgment denying a CEQA writ petition challenging the City of Laguna Beach’s determination that the Guidelines’ Class 31 categorical exemption applied to its approval of a project to remodel a historic single family home.  Historic Architecture Alliance, et al v. City of Laguna Beach, et al (Ian and Cherlin Kirby, Real Parties in Interest) (2023) 96 Cal.App.5th 186.    The decision refines the established CEQA principle that a project that may cause a change in the significance of a historical resource is also one that may have a significant environmental effect (and thus require an EIR or MND) in the unique context of CEQA’s categorical exemption for projects found to be consistent with the “Secretary of the Interior’s Standards for the Treatment of Historic Properties” (the “Secretary’s Standards”).  (CEQA Guidelines, § 15331.)  It also clarifies that the “fair argument” test does not apply to a project opponent’s attempt to establish the historical resource exception (Guidelines § 15300.2(f)) to this categorical exemption; because both the exemption and the exception require the lead agency to make the same factual determination – i.e., the project’s consistency with the Secretary’s Standards – applying the fair argument test to the exception would render the exemption meaningless.Continue Reading Fourth District Affirms Judgment Upholding City’s Use of CEQA Guidelines’ Historical Resource (Class 31) Exemption To Approve Historic Single Family Home Rehabilitation Project; Holds “Fair Argument” Test Doesn’t Apply To Exception Requiring Same Factual Determination As Exemption

In a partially published opinion filed September 20, 2023, the First District Court of Appeal (Div. 3) affirmed the Alameda County Superior Court’s judgments denying writ petitions in three partially consolidated CEQA actions challenging the 2021 project/program EIR for the Comprehensive Parnassus Heights Plan.  Yerba Buena Neighborhood Consortium, LLC, et al v. Regents of the University of California/San Franciscans for Balanced and Livable Communities v. Regents of the University of California (2023) 95 Cal.App.5th 779. Continue Reading First District Affirms Judgment Upholding UCSF’s EIR for Long-Range Development Plan Substantially Increasing Parnassus Heights Campus Development Against Numerous CEQA Challenges

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

“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

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

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

In a published opinion filed June 13, 2023, the Second District Court of Appeal (Div. 8) affirmed the trial court’s judgment rejecting CEQA challenges to the City of Pomona’s (City) use of a statutory exemption – under Public Resources Code § 21083.3(a), (b) and CEQA Guidelines § 15183 – for its adoption of a zoning overlay district allowing commercial cannabis activities at specific locations within the City’s boundaries.  Gregory Lucas v. City of Pomona (2023) 92 Cal.App.5th 508.Continue Reading Second District Affirms Judgment Upholding City of Pomona’s Commercial Cannabis Permit Program Overlay District As CEQA-Exempt Under Statutory Exemption Provided In Guidelines Section 15183 For Projects Consistent With Development Density Established By Existing Zoning, General Plan, Or Community Plan for Which EIR Was Certified; Holds Substantial Evidence Standard of Review Applies To Lead Agency’s Finding of Exemption