Exemptions

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On September 7, 2023, Governor Newsom signed into law AB 1307, urgency legislation which took effect immediately and added to the Public Resources Code a new Section 21085, which reads: “For purposes of this division, for residential projects, the effects of noise generated by project occupants and their guests on human beings is not a significant effect on the environment.”Continue Reading Recent Legislation Brings Incremental CEQA Reform

“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

In a published opinion filed August 14, 2023, the Third District Court of Appeal reversed a judgment that denied a petition for writ of mandate challenging the State Department of Public Health’s (Department) approval of Real Party in Interest Harm Reduction Coalition of Santa Cruz County’s (real party) needle exchange program.  Grant Park Neighborhood Association Advocates v. Department of Public Health, et al. (2023) 94 Cal.App.5th 478.  In ordering a writ to issue to set aside the approval, the Court of Appeal agreed with petitioner and appellant Grant Park’s first three arguments based on the Department’s prejudicial violations of Health and Safety Code § 121349’s required procedures; it declined to reach appellant’s separate CEQA argument seeking the same relief, however, since it had already granted all requested relief under the other statutory provisions.  However – and as most relevant to this blog – the Court also noted that following the trial court’s judgment the Legislature enacted a 2021 statutory amendment exempting the Department’s approval of needle exchange operations from CEQA.Continue Reading Third District Declines To Reach CEQA Exemption Claim In Reversing On Other Grounds Judgment Upholding State Department of Public Health’s Approval of Santa Cruz County Needle Exchange Program But Notes New Statutory CEQA Exemption Now Exists

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 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

In an opinion filed May 12, and later certified for publication on June 8, 2023, the Second District Court of Appeal (Div. 6) upheld the City of San Buenaventura’s decision to remove a bronze statue of Father Junipero Serra from its location in front of City Hall and relocate it to the San Buenaventura Mission; the Court affirmed the trial court’s judgment denying a writ petition challenging the City’s decision on various grounds, including alleged CEQA violations.  Coalition for Historical Integrity v. City of San Buenaventura (2023) 92 Cal.App.5th 430.Continue Reading Historical Correction? Second District Holds City’s Policy Decision To Remove And Relocate “Offensive” Statue That Was Replica of Earlier Historic Landmark Qualified For CEQA’s Common Sense Exemption Because Substantial Evidence Supported City’s Finding That, Despite Its Earlier Erroneous Listing, Replica Was Never Actually A Historically Significant Resource

In a March 27, 2023 post found here, we wrote about the Second District Court of Appeal’s (Div. 1) decision concerning the Water Code section 13389 CEQA exemption for Regional Water Quality Control Board (“RWQCB”) issuance of waste discharge permits, formerly published as Los Angeles Waterkeeper v. State Water Resources Control Board (2023) 88 Cal.App.5th 874.  After the Regional Board and State Board filed a request for modification of that opinion to clarify certain issues, the Court of Appeal vacated it, ordered rehearing, considered supplemental briefing, and filed a new, superseding published opinion in the case on June 2, 2023.Continue Reading Second District “Waters Down” Los Angeles Waterkeeper Waste Discharge Permit CEQA Exemption Opinion After Rehearing At Request Of Water Boards, Narrows And Clarifies Holding With No Change In Judgment Or Result

On March 22, 2023, the California Supreme Court granted the City of San Francisco’s stand-alone depublication request in (and declined to review on its own motion) the First District Court of Appeal’s (Div. 4) decision in Saint Ignatius Neighborhood Association v. City and County of San Francisco.  The depublished opinion reversed a trial court decision that upheld the City’s use of CEQA Guidelines Class 1 (existing facilities) and 3 (small structures) categorical exemptions for a high school athletic stadium project involving the installation of four 90-foot tall light standards to significantly expand nighttime stadium use.  Officially, the Supreme Court’s depublication order is not to be construed as expressing any opinion on the merits, and the Court of Appeal’s decision remains fully binding on the parties but cannot be cited as precedent.  My 12/7/22 post on the case can be found here. Continue Reading CEQA Updates: Supreme Court Depublishes High School Stadium Light Standard Exemption Case; Second District Modifies Pacific Palisades Opinion With No Change In Judgment

On February 27, 2023, the Second District Court of Appeal (Division One) filed its published decision in Los Angeles Waterkeeper v. State Water Resources Control Board (2023) 88 Cal.App.5th 874, a case mainly focused on water law but which also has some significant CEQA implications.  Briefly put, the petitioner in Los Angeles Waterkeeper attempted to bypass a statutory limitation on CEQA review through an action that would, if successful, have resulted in the imposition of additional substantive and procedural environmental review requirements on certain projects for which no EIR is required. As explained below, the Second District rejected this invitation to expand CEQA’s reach.Continue Reading Second District Affirms Judgment Upholding Water Code CEQA Exemption, Rejects Plaintiff’s Attempt To Extend CEQA Review And Findings Requirements To Regional Water Board’s Approval Of Waste Discharge Permits

In a published opinion filed March 8, 2023, the Second District Court of Appeal (Division 8) affirmed the trial court’s judgment denying writ relief in a lawsuit challenging approval of a CEQA-exempt eldercare facility project in Pacific Palisades, an oceanside area of the City of Los Angeles.  Pacific Palisades Residents Association, Inc. v. City of Los Angeles (Rony Shram, et al, Real Parties in Interest) (2023) 88 Cal.App.5th 1338.   The decision capped almost six years of “vociferous” NIMBY opposition to a much-needed project – an opposition that failed on its merits at every governmental and judicial level of review to which it was taken, yet relentlessly continued nonetheless.Continue Reading Another Call for CEQA Litigation Reform?  Second District Rejects NIMBY Group’s CEQA, Coastal Act, and Land Use Challenges, Affirms Judgment Upholding Approval of Zoning-Compliant And CEQA-Exempt Eldercare Facility On Flat, Graded, Vacant One-Acre Infill Site Surrounded By Residential and Commercial Development