Cumulative Effects

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In a mammoth 132-page published opinion (with an additional five pages of appendices) filed on June 12, 2020, the Fourth District Court of Appeal (Division One) mostly affirmed the trial court’s judgment invalidating San Diego County’s approvals of a 2018 Climate Action Plan (CAP), related Guidelines for Determining Significance, and related Supplemental EIR (SEIR).  The opinion – which marked “the third time the County’s attempt to adopt a viable climate action plan and related CEQA documents” had been before the Court – resolved consolidated appeals in three cases, in which the lead plaintiffs were Golden Door Properties, LLC and the Sierra Club.  (Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467.)  While the Court of Appeal reversed the trial court’s findings that the CAP was inconsistent with the County’s General Plan (applying the familiar highly deferential standard of review to the County’s consistency determination), that several of the County’s responses to SEIR comments were inadequate, and that the SEIR’s geographical scope of study for cumulative impacts was inconsistent, it otherwise affirmed the trial court’s findings of significant CEQA violations affecting the CAP and SEIR.
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Continue Reading Third Time Is Not The Charm: Fourth District Affirms Judgment Setting Aside San Diego County’s Climate Action Plan And Related Supplemental EIR Approvals Due To CEQA Violations

In a partially-published, 150-page slip opinion resolving appeals in consolidated cases, and filed February 25, 2020, the Fifth District Court of Appeal affirmed in part and reversed in part a trial court decision finding CEQA defects in the 1800-plus page EIR prepared for Kern County’s adoption of an ordinance designed to provide a streamlined, ministerial permitting process for new oil and gas wells in the county.  King and Gardiner Farms, LLC v. County of Kern, et al. (California Independent Petroleum Association, et al., Real Parties in Interest); Committee for a Better Arvin, et al. v. County of Kern, et al. (California Independent Petroleum Association, et al., Real Parties in Interest) (5th Dist. 2020) 45 Cal.App.5th 814.  The published portion of the opinion held the EIR improperly deferred the formulation and implementation of mitigation for significant water supply impacts; failed to adequately mitigate farmland conversion impacts due to improper reliance on agricultural conversion easements (ACEs) as offsetting mitigation; and failed to adequately analyze noise impacts by relying solely on an absolute cumulative numerical limit threshold of significance, rather than also analyzing the significance of the magnitude of project noise increases over ambient levels in differently affected settings.  (Approximately 53 pages of the opinion, a portion finding CEQA violations with respect to air quality and related health risks due to failure to adequately discuss PM 2.5 emissions impacts and related mitigation, and failure to recirculate the DEIR after adding significant new information in the form of an appended Cumulative Health Risk Assessment, were not certified for publication; consequently, those portions set no precedent and will not be discussed in further detail in this post.)
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Continue Reading Fifth District Holds EIR For Kern County’s Ministerial Oil and Gas Well Permitting Ordinance Violates CEQA Due To Improperly Deferred Mitigation For Water Supply Impacts, Inadequate Mitigation For Farmland Conversion, And Inadequate Analysis of Noise Impacts

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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Continue Reading “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 originally filed June 28, and later certified for partial publication on July 22, 2019 (upon the request of the California Building Industry Association), the Second District Court of Appeal affirmed a judgment denying a CEQA writ petition challenging a project converting a vacant former apartment building into a boutique hotel in Los Angeles’ Hollywood area.  Hollywoodians Encouraging Rental Opportunities (HERO) v. City of Los Angeles et al. (Millennium Settlement Consulting/1850 North Cherokee, LLC et al., Real Parties in Interest) (2019) 37 Cal.App.5th 768.  The MND for the project was legally adequate, and the City did not err in failing to prepare an EIR to analyze loss of affordable housing and tenant displacement impacts, because the former apartment building had been withdrawn from the rental market for years and was vacant at the time environmental review for the hotel project commenced.  Because the relevant CEQA baseline when review commenced in 2015 was a vacant building already withdrawn from the rental market, the record did not support a fair argument that conversion of the building to hotel use would have significant impacts on Hollywood’s stock of rent-controlled housing or displacement of residents.
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Continue Reading “Baseline” Basics: Second District Rejects CEQA Challenge To Hollywood Hotel Project MND Alleging Unanalyzed Human/Housing Displacement Impacts Because Plaintiffs Relied On Incorrect Environmental Baseline

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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Continue Reading 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

In a lengthy opinion filed February 22, and belatedly ordered published on March 25, 2019, the First District Court of Appeal (Div. 1) affirmed the trial court’s judgment denying a petition for writ of mandate challenging the EIR for a mixed use business and residential project (the “5M Project”) on 4 acres in downtown San Francisco.  South of Market Community Action Network v. City and County of San Francisco (Forest City California Residential Development, Inc., et al., Real Parties in Interest) (2019) 33 Cal.App.5th 321.  The 5M Project includes a general plan amendment and development agreement, and would provide “office, retail, cultural, educational, and open-space uses …, primarily to support the region’s technology industry and provide spaces for co-working, media, arts, and small-scale urban manufacturing” on a site bounded by Mission, Fifth, Howard, and Sixth Streets.  The project site is currently occupied by eight buildings with approximately 317,700 gross square feet (gsf) of office and commercial uses (including the Chronicle Building, which the project would renovate), and seven surface parking lots.
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Continue Reading First District Rejects Laundry List Of CEQA Challenges To EIR For Mixed Use 5M Project In Downtown San Francisco

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.

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Continue Reading CEQA Roundup – February 2019

In an opinion filed December 18, 2018, and later ordered published on January 10, 2019, the First District Court of Appeal affirmed a judgment denying appellant citizen groups’ writ petition challenging the City of St. Helena’s approval of an 8-unit, multifamily housing project and related demolition and design review.  McCorkle Eastside Neighborhood Group, et al. v. City of St. Helena, et al. (2019) 31 Cal.App.5th 80.  The decision applied the basic principle that CEQA does not apply to ministerial project approvals, and further clarified that CEQA does not apply to “mixed” discretionary/ministerial approvals where the “discretionary component” does not give the agency the authority to mitigate environmental impacts.  It held that because the City’s discretion under its local design review ordinance does not extend to addressing environmental effects it does not implicate CEQA, and therefore the City’s reliance on the CEQA Guidelines’ Class 32 exemption was unnecessary.
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Continue Reading Delineating CEQA’s Scope: First District Holds CEQA Does Not Apply To Ministerial Approval Of Multifamily Housing Project Allowed By Right Under Zoning Where City’s Discretion Was Limited To Design Review

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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Continue Reading CEQA Regulatory Update: OPR Provides Further Guidance on VMT, Asks for Input on GHGs; Guidelines Revisions Now Effective

In a unanimous 33-page opinion authored by Justice Ming Chin and issued on December 24, 2018, the California Supreme Court addressed the standard of review for claims challenging the legal sufficiency of an EIR’s discussion of environmental impacts, and also CEQA’s rules regarding deferral and adequacy of mitigation measures.  Sierra Club v. County of Fresno (Friant Ranch, L.P.) (2018) 6 Cal.5th 502, Case No. S219783.  In affirming in part and reversing in part the Court of Appeal’s judgment, the Supreme Court held that the EIR for the Friant Ranch Project – a 942-acre master-planned, mixed-use development with over 2,500 senior residential units, 250,000 square feet of commercial space, and extensive open space/ recreational amenities on former agricultural land in north central Fresno County – was deficient in its informational discussion of air quality impacts as they connect to adverse human health effects.  In doing so, the decision provides guidance in an area – the legal adequacy of an EIR’s discussion on a topic required by CEQA – that it held does not fit neatly within CEQA’s usual standard of review dichotomy, which provides for de novo review and exacting judicial scrutiny of alleged procedural errors (e.g., an EIR’s complete omission of a required topic area) and deferential substantial evidence review of an EIR’s or agency’s factual determinations and conclusions.
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Continue Reading Connecting The CEQA Dots? Supreme Court Holds Friant Ranch Project EIR’s Air Quality Impacts Discussion Insufficiently Relates Pollutant Data To Specific Adverse Human Health Effects