On August 17, 2016, the California Supreme Court ordered the Fourth District’s opinion in People for Proper Planning v. City of Palm Springs (2016) 247 Cal.App.4th 640 to be depublished, rendering it unciteable and of no precedential effect. I posted two previous blog entries on the Court of Appeal’s original decision and its subsequent modification.
Continue Reading Supreme Court Depublishes Quirky Fourth District CEQA/General Plan Decision
Cumulative Effects
First District Rejects CEQA Challenge To “Plan Bay Area” Sustainable Communities Strategy EIR As Premised On Fundamental Misinterpretation of SB 375
By Arthur F. Coon on
In a 58-page published opinion filed June 30, 2016, the First District Court of Appeal affirmed the Alameda County Superior Court’s judgment upholding the Metropolitan Transportation Commission’s (MTC) and Association of Bay Area Government’s (ABAG) EIR for and approval of “Plan Bay Area,” the agencies’ first Sustainable Communities Strategy (SCS) prepared pursuant to California’s landmark “Sustainable Communities and Climate Protection Act of 2008” (SB 375). Bay Area Citizens v. Association of Bay Area Governments, et al (2016) 248 Cal.App.4th 966.
Continue Reading First District Rejects CEQA Challenge To “Plan Bay Area” Sustainable Communities Strategy EIR As Premised On Fundamental Misinterpretation of SB 375
Fourth District Modifies CEQA Categorical Exemption Opinion Involving Palm Springs General Plan Amendment Without Altering Judgment
By Arthur F. Coon on
In an order filed June 17, 2016, the Court of Appeal for the Fourth Appellate District (Division 2) modified its opinion filed April 22, and ordered partially published May 20, 2016, in People for Proper Planning v. City of Palm Springs (2016) ___ Cal.App.4th ___, 2016 WL 1633062. The modification, which did not affect the judgment, substituted at page 8 of the prior slip opinion a paragraph discussing the operation of categorical exemptions and the “unusual circumstances” exception thereto, and cited to the relevant standards enunciated by the Supreme Court’s decision in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1105, 1114. It also added a footnote to page 9 stating: “The City does not dispute that this case presents “unusual circumstances.””
Continue Reading Fourth District Modifies CEQA Categorical Exemption Opinion Involving Palm Springs General Plan Amendment Without Altering Judgment
Home(s) In The “Range”: Fourth District Overturns CEQA Exemption For City of Palm Springs’ General Plan Amendment Removing Minimum Residential Density Requirements
By Arthur F. Coon on
In a brief – and somewhat odd – opinion filed April 22, and belatedly ordered partially published on May 20, 2016, the Fourth District Court of Appeal reversed a trial court judgment denying a petition for writ of mandate challenging a General Plan Amendment (GPA) adopted by the City of Palm Springs as categorically exempt from CEQA. People for Proper Planning v. City of Palm Springs (4th Dist., Div. 2, 2016) 247 Cal.App.4th 640, Case No. E062725. The Court held the trial court erred in upholding the City’s positions that the GPA, which eliminated minimum density requirements for all residential land use categories, was exempt from CEQA review under the Class 5 categorical exemption and because it allegedly did not change the environmental “baseline,” i.e., the City’s alleged preexisting practice of ignoring the General Plan’s minimum density provisions (and, hence, its allowable density ranges) when acting on residential development applications. In light of its CEQA ruling requiring reversal and further environmental (and necessarily General Plan consistency) analyses by the City, the Court held that it need not reach appellant PFPP’s other arguments that the GPA rendered the General Plan internally inconsistent, and violated statutory requirements that City accommodate its fair share of regional housing needs for all income levels.
Continue Reading Home(s) In The “Range”: Fourth District Overturns CEQA Exemption For City of Palm Springs’ General Plan Amendment Removing Minimum Residential Density Requirements
OPR Releases Revised Proposed CEQA Guidelines Amendment To Implement SB 743 Traffic Analysis Mandates
By Arthur F. Coon on
Posted in CEQA Guidelines, Climate Change/GHG, Cumulative Effects, Land Use, Legislation, Mitigation, Reform
The evolution of CEQA traffic impacts analysis from level of service (LOS) methodology to a vehicle miles traveled (VMT) analysis continues apace. The latest step in this revolutionary paradigm shift was the January 20, 2016 release by the Governor’s Office of Planning and Research (OPR) of its “Revised Proposal on Updates to the CEQA Guidelines on Evaluating Transportation Impacts in CEQA” (the “Revised Proposal”).
Continue Reading OPR Releases Revised Proposed CEQA Guidelines Amendment To Implement SB 743 Traffic Analysis Mandates
CDFA Program EIR Violates CEQA By Failing To Analyze Invasive Moth Control Program As Alternative To Eradication, Holds Third District
By Arthur F. Coon on
In a lengthy opinion filed December 2, 2015, and belatedly ordered published on January 4, 2016, the Third District Court of Appeal invalidated the California Department of Food and Agriculture’s (CDFA) programmatic EIR for a seven-year program to eradicate an invasive pest – an Australian native insect known as the light brown apple moth (LBAM) – that threatens California’s native plants and agricultural crops. North Coast Rivers Alliance, et al. v. A.G. Kawamura/Our Children’s Earth Foundation, et al. v. California Department of Food and Agriculture (2015) 243 Cal.App.4th 647. It reversed the trial court’s judgments denying appellants’ mandate petitions and remanded with directions to grant them.
Continue Reading CDFA Program EIR Violates CEQA By Failing To Analyze Invasive Moth Control Program As Alternative To Eradication, Holds Third District
California Supreme Court Holds “CEQA-In-Reverse” Is Not The Norm, Reverses And Remands First District’s Judgment In CBIA v. BAAQMD
By Arthur F. Coon on
In a unanimous 24-page opinion authored by newly seated Justice Cuellar and filed December 17, 2015, the California Supreme Court resolved a fundamental issue regarding CEQA’s scope, holding that – with certain specific statutory exceptions – it does not compel what many practitioners have referred to as a “CEQA-in-reverse” analysis. California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369, Case No. S213478.
Continue Reading California Supreme Court Holds “CEQA-In-Reverse” Is Not The Norm, Reverses And Remands First District’s Judgment In CBIA v. BAAQMD
Lost in Translation: Supreme Court Elucidates CEQA GHG Analysis, “Fully Protected” Species Take Prohibition, And Issue Exhaustion In Decision Finding Newhall Ranch Development EIR Flawed
In a 5-2 decision filed November 30, 2015, the California Supreme Court reversed the judgment of the Court of Appeal which had upheld the EIS/EIR for the controversial Newhall Ranch development project. Center For Biological Diversity, et al. v. California Department of Fish and Wildlife (The Newhall Land and Farming Company, Real Party in Interest) (2015) 62 Cal.4th 204. The high court approved the EIS/EIR’s methodology analyzing the significance of the project’s greenhouse gas (GHG) emissions in terms of reductions from projected “business as usual” (BAU) emissions consistent with AB 32’s statewide reductions mandate, rather than against some absolute numeric limit above the project site’s “baseline” emissions. However, it held the GHG analysis lacked supporting substantial evidence and a cogent explanation correlating the project-specific reductions to AB 32’s mandated state-wide reductions so as to demonstrate consistency with the latter’s goals under the approved methodology. The Court further held the EIS/EIR violated Fish & Game Code § 5515’s prohibition on the taking of “fully protected” fish species by including mitigation measures providing for the collection and relocation by USFWS of the unarmored threespine stickleback. Finally, the Court held – under the particular factual circumstances of the case – that certain issues raised by plaintiffs during an optional public comment period on the Final EIS/EIR were timely raised so as to sufficiently exhaust administrative remedies under Public Resources Code § 21177(a).
Continue Reading Lost in Translation: Supreme Court Elucidates CEQA GHG Analysis, “Fully Protected” Species Take Prohibition, And Issue Exhaustion In Decision Finding Newhall Ranch Development EIR Flawed
State Lands Commission’s CEQA Review of SF Bay/Delta Sand Mining Project Approval Is Adequate, But Fails to Fulfill Obligation to Consider Public Trust Doctrine
The First District Court of Appeal held the California State Lands Commission’s (“CSLC”) EIR for a project involving the lease of sovereign lands beneath San Francisco Bay for private dredge mining of sand complied with CEQA; however, it partially reversed the trial court’s judgment denying a writ because the record failed to demonstrate CSLC’s compliance with the public trust doctrine. San Francisco Baykeeper, Inc. v. California State Lands Commission (Hanson Marine Operations, Inc., et al., Real Parties In Interest) (1st Dist., Div. 4, 2015) 242 Cal.App.4th 202, filed 11/18/15.
Continue Reading State Lands Commission’s CEQA Review of SF Bay/Delta Sand Mining Project Approval Is Adequate, But Fails to Fulfill Obligation to Consider Public Trust Doctrine
Proposed CEQA Guidelines Amendments: A Critique of OPR’s “Preliminary Discussion Draft” (Part III – Proposed “Minor Technical Improvements”)
On September 18 and October 5, 2015, I posted Parts I and II, respectively, of my comments on OPR’s August 11, 2015 Preliminary Discussion Draft of its “Proposed Updates to the CEQA Guidelines” (the “Discussion Draft”). While the deadline for public comments on the 145-page Discussion Draft was October 12, 2015, there undoubtedly will be future opportunities for public input on the proposed Guidelines amendments during the formal rulemaking process that will ultimately be conducted by the Natural Resources Agency, if not before. This concluding post on the Discussion Draft covers its final part, which sets forth about a dozen proposed revisions that OPR characterizes as merely “Minor Technical Improvements.” (Discussion Draft, at 108-145.)
Continue Reading Proposed CEQA Guidelines Amendments: A Critique of OPR’s “Preliminary Discussion Draft” (Part III – Proposed “Minor Technical Improvements”)