Time for some “spring cleaning” updates on several notable CEQA-related matters.
Climate Change/GHG
Third District Affirms Judgment Rejecting CEQA Challenges To EIR For Cordova Hills Master Planned Community Project
In an opinion filed January 30, and later ordered published on March 2, 2020, the Third District Court of Appeal affirmed a judgment denying a writ petition filed by plaintiffs Environmental Council of Sacramento and the Sierra Club challenging the EIR for Cordova Hills, a large master planned community project approved by Sacramento County. Environmental Council of Sacramento v. County of Sacramento (Cordova Hills, LLC, et. al., Real Parties in Interest) (3d Dist. 2020) ___ Cal.App.5th ___.
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“ROG Won: A CEQA Wars Story” – Third District Holds Geothermal Energy Project EIR’s Rejection Of Proposed Mitigation Measures For Significant ROG Fugitive Emissions Impact Violated CEQA Where No Substantial Evidence Showed Measures’ Infeasibility
In an opinion filed November 26, and ordered published on December 23, 2019, the Third District Court of Appeal partially reversed a judgment rejecting a labor union’s CEQA challenges to the EIS/EIR for a geothermal power plant project on federal land in Mono County. Russel Covington, et al v. Great Basin Unified Air Pollution Control District, et al. (Orin 50 LLC, et al, Real Parties in Interest) (2019) 43 Cal.App.5th 867.
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Out With The Old (And In With The New … Next Year)! – Third District Rejects CEQA And General Plan Consistency Challenges to Sacramento’s 2035 General Plan Update And Related EIR, Holds Traffic Analysis Challenge Based On Lowering of Acceptable LOS Is Mooted By Public Resources Code § 20199, But New VMT Standard Doesn’t Yet Apply
By Arthur F. Coon on
The City of Sacramento received an early Christmas present with the December 18 publication of the Third District Court of Appeal’s opinion in Citizens for Positive Growth & Preservation v. City of Sacramento (2019) 43 Cal.App.5th 609, which was originally filed on November 26, 2019. The decision affirmed a trial court judgment upholding the City’s 2035 General Plan against the plaintiff group’s Planning and Zoning Law and CEQA challenges. The opinion’s most significant CEQA holding was that plaintiff’s challenge to the EIR’s transportation impacts analysis was moot because the applicable law currently in effect at the time of judgment in the appellate court – specifically, Public Resources Code § 20199(b)(2) (enacted as part of SB 743) – provides that auto delays measured by LOS or similar measures shall not be considered significant environmental impacts. The Court of Appeal also rejected all of plaintiff’s other CEQA challenges, including those to the City’s non-adoption of the no-project alternative, its decision not to recirculate the EIR after adding numerous supplemental changes to the draft 2035 General Plan, and its Final EIR’s GHG and cyclist safety analyses.
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Third District Upholds Sustainable Communities Environmental Assessment (SCEA) Used Instead Of Traditional CEQA Document To Approve High-Rise, High-Density Mixed-Use Condo Housing Project In Sacramento’s Midtown
By Arthur F. Coon on
In a 30-page opinion originally filed July 3, and certified for publication on July 18, 2019, the Third District Court of Appeal affirmed the trial court’s judgment denying a writ petition challenging, on zoning law and CEQA grounds, the City of Sacramento’s approval of a high-rise infill housing project in its midtown area. Sacramentans for Fair Planning v. City of Sacramento (2500 J Owners, LLC, Real Party in Interest) (2019) 37 Cal.App.5th 698. The project, known as the Yamanee project, calls for construction of a mixed-use condominium building 15 stories (and 178-1/2-feet) high on a .44-acre site at the southeast corner of 25th and J streets. It would total 177,032 square feet of space on the 19,200 square foot site, consisting of one floor of commercial uses, three levels of parking, one floor of resident amenities, and 10 floors containing 134 residential condominiums.
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CEQA Roundup – February 2019
Just a few updates/items of possible interest as we head toward the end of this short (but very cold and wet) month:
Regulatory Developments
The close of OPR’s public comment period on its Discussion Draft of the CEQA Climate Change Advisory is March 15, 2019, at 5:00 p.m.
OPR also released in late December 2018 its Technical Advisory on Evaluating Transportation Impacts Under CEQA, containing its technical recommendations on VMT assessment, thresholds of significance, and mitigation measures, as well as incorporating Guidelines changes and more recent feedback since release of the April 2018 technical advisory. Details on these and related developments can be found in OPR’s February 21, 2019 email and on its website.
CEQA Regulatory Update: OPR Provides Further Guidance on VMT, Asks for Input on GHGs; Guidelines Revisions Now Effective
By Arthur F. Coon & Matthew C. Henderson on
Late last month the Governor’s Office of Planning and Research (OPR) released two documents of interest to CEQA practitioners. One is a discussion draft of a “CEQA and Climate Change Advisory.” The other is an update to its previous “Technical Advisory on Evaluating Transportation Impacts in CEQA.”
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Fourth District Holds San Diego County’s Threshold of Significance for Evaluating GHG Impacts Violates CEQA And Prior Writ
By Arthur F. Coon on
In a published opinion filed in consolidated appeals on September 28, 2018, the Fourth District Court of Appeal (Div. 1) affirmed the trial court’s judgment invalidating San Diego County’s adoption of a 2016 Guidance Document that established a generally applicable threshold of significance for GHG analysis of 4.9 metric tons of CO2e per service population per year. Golden Door Properties, LLC v. County of San Diego/Sierra Club, LLC v. County of San Diego (2018) 27 Cal.App.5th 892. The Court held the case was ripe because the 2016 Guidance Document’s GHG “Efficiency Metric” set forth the threshold of significance as generally applicable to project proposals; it held the document violated CEQA because it was not formally adopted by ordinance, rule, resolution or regulation through a public review process, and was not supported by substantial evidence adequately explaining how its service population number derived from statewide data constituted an appropriate GHG metric to use for all projects in unincorporated San Diego County. (CEQA Guidelines, §§ 15064.7(b), (c); Center for Biological Diversity v. California Department of Fish and Wildlife (2015) 62 Cal.4th 204, 227 (“CBD”).) The Court also held County’s adoption of the threshold of significance in advance of its required Climate Action Plan (CAP) constituted improper “piecemealing [of] environmental regulations” in violation of the Court’s earlier decision and the trial court’s second supplemental writ in the same litigation, which treated the CAP and thresholds of significance based on it as a single CEQA project and required completion of the CAP prior to the adoption of the thresholds of significance.
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More Mild Than Wild: Legislature Tinkers With Modestly Reforming Scope Of CEQA Analysis In Two New Laws
On September 7, 2018, Governor Brown signed two bills amending CEQA in relatively minor ways that will become effective January 1, 2019.
AB 2341 (Chapter 298) (Mathis) adds Public Resources Code § 21081.3 to provide that “a lead agency is not required to evaluate the aesthetic effects of a project and aesthetic effects shall not be considered significant effects on the environment if the project involves the refurbishment, conversion, repurposing, or replacement of an existing building that meets … [five specified] requirements[.]” To fall within this new partial statutory exemption, (1) the building must be abandoned, dilapidated (defined as “decayed, deteriorated, or fallen into such disrepair through neglect or misuse so as to require substantial repair for safe and proper use”), or have been vacant for over a year; (2) the site must be immediately adjacent to parcels developed with qualified urban uses or 75 percent of its perimeter must adjoin such parcels (with the remainder adjoining parcels previously so developed); (3) the project must include housing construction; (4) any new structure must “not substantially exceed the height of the existing structure”; and (5) the project must “not create a new source of substantial light or glare.”
“Growing Pains”: First District Holds Program EIR for San Francisco’s General Plan Housing Element Amendment Complies with CEQA
In a lengthy published opinion filed on August 22, 2018, the First District Court of Appeal (Div. 4) affirmed the trial court’s judgment rejecting various CEQA challenges to the City of San Francisco’s (“City”) Program EIR analyzing the environmental impacts of its 2009 General Plan Housing Element, which it adopted on June 29, 2011. San Franciscans for Livable Neighborhoods v. City and County of San Francisco (2018) 26 Cal.App.5th 596. San Franciscans for Livable Neighborhoods (“SFLN”), an unincorporated association comprised of more than a dozen neighborhood organizations, had challenged the EIR – mostly unsuccessfully – in the trial court. It then appealed from adverse portions of the judgment concerning the EIR’s baseline and impact analyses for traffic, water supply, land use, and visual resources impacts; the City’s decision not to recirculate the EIR; the EIR’s alternatives analysis; and the feasibility of certain proposed mitigation measures.
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