As we draw near the close of another year, a number of recent CEQA developments bear noting.
A few recent developments and upcoming events in the CEQA world bear quick mention:
- The BART Housing Bill:
Under AB 2923, BART now has limited land use regulation authority on its own lands near its stations. BART is required to adopt Transit-Oriented Development (TOD) standards for its lands by July 1, 2020, and its action in this regard is subject to CEQA review, with BART acting as the lead agency. The new law declares the minimum TOD standards for this purpose (setting minimum density and height limits, and maximum parking limits) are set forth in BART’s 2017 TOD Guidelines. Development projects which meet TOD zoning requirements and provide 30% affordable housing will qualify for streamlined, “by-right,” ministerial approval with no additional CEQA review. The law also requires cities and counties to adopt zoning standards for BART-owned lands, conforming to BART’s adoption of TOD standards for height, density, parking, and FAR for eligible TOD projects, within 2 years of BART’s action, or by July 1, 2022 if BART fails to act. The new law is intended to increase California’s housing supply and provide some relief from its housing crisis, and could enable BART to develop up to 20,000 residential units and 4.5 million square feet of office/commercial uses on 250 acres of BART-owned lands by 2040. My partner Bryan Wenter’s excellent post on this new law can be found here.
In a published opinion filed September 18, 2018, the Fourth District Court of Appeal (Div. 1) affirmed a judgment granting a writ setting aside the City of San Diego’s (City) decision to subject a coastal development permit (CDP) application for construction of a single family home on a vacant La Jolla lot to CEQA review. Francis A. Bottini, Jr. v. City of San Diego (2018) 27 Cal.App.5th 281.
Continue Reading Fourth District Holds City Violated CEQA By Refusing To Recognize Exemption For Single Family Residence Project And Attempting To Subject Owner’s Already Authorized And Completed Demolition Action To Retroactive Environmental Review (Yet Absolves City From Liability For Regulatory Taking)
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.”
In an opinion filed June 28, and later ordered published on July 27, 2018, the Second District Court of Appeal (Div. 6) affirmed the trial court’s judgment dismissing on demurrer a writ petition seeking to compel the County of San Luis Obispo to comply with CEQA in issuing well construction permits to four agricultural enterprises, mostly for vineyard irrigation. The Court held County’s governing local ordinance, which addresses only water quality issues and incorporates fixed technical standards for well construction from relevant Department of Water Resources (DWR) Bulletins, established a ministerial scheme for issuing such permits and does not confer “discretion to shape a well permit to mitigate environmental damage arising from groundwater overuse.” California Water Impact Network v. County of San Luis Obispo (Justin Vineyards and Winery, LLC et al., Real Parties in Interest) (2018) 25 Cal.App.5th 666.
In a published opinion filed June 13, 2018, the Second District Court of Appeal (Div. 4) affirmed a judgment denying a writ of mandate and declaratory relief in an action challenging the California State Lands Commission’s (“Commission”) determination that CEQA Guidelines § 15301’s categorical exemption for “existing facilities” applied to its renewal of PG&E’s leases of state-owned lands needed to operate the Diablo Canyon nuclear power plant until federal licensures expire in 2025. World Business Academy v. California State Lands Commission (Pacific Gas & Electric Company, Real Party in Interest) (2018) 24 Cal.App.5th 476. The Court rejected petitioner/appellant World Business Academy’s arguments that the consolidated lease replacement, which maintains the status quo at the plant until 2025, did not fall within the exemption, or was subject to the “unusual circumstances” exception, and also rejected arguments that it violated the public trust doctrine.
Continue Reading Second District Holds CEQA’s Existing Facilities Categorical Exemption Applies To State Lands Commission/PG&E Lease Extension For Operation Of California’s Last Active Nuclear Power Plant Until 2025 Closure
In a published decision filed June 12, 2018, the Second District Court of Appeal (Div. 6) held that the same broad definition of a “project” that mandates more extensive CEQA review of activities undertaken or approved by public agencies also applies in determining the scope of statutory exemptions that serve to exempt certain projects from CEQA review. County of Ventura v. City of Moorpark, Broad Beach Geologic Hazard Abatement District (2018) 24 Cal.App.5th 377. The Court of Appeal affirmed the trial court’s judgment to the extent it rejected Ventura County’s CEQA, preemption, and extraterritorial regulation challenges to a settlement agreement between the City of Moorpark and the Broad Beach Geologic Hazard Abatement District (BBGHAD), a state law entity created to carry out a Malibu beach restoration project. But it reversed with directions to declare void (as unlawful abdications of BBGHAD’s police power) certain of the settlement agreement’s provisions which severely limited BBGHAD’s authority to modify project haul routes in the event of changed circumstances.
On June 6, 2018, the Governor’s Office of Planning and Research (OPR) announced that it had issued a new technical advisory listing legislative CEQA exemptions located in statutes outside of Division 13 of the Public Resources Code. The advisory contains bullet point citations to more than 50 statutes and includes an Appendix A setting forth the full text of these exemptions, most of which are not contained in the CEQA Guidelines. The advisory notes that its list – which contains statutes codified in the Public Resources, Water, Penal, Government, Business and Professions, Education, Fish and Game, Health and Safety, Military and Veterans, and Welfare and Institutions Codes – is not exhaustive.
On April 30, 2018, the United States Supreme Court denied the petition for writ of certiorari filed in North Coast Railroad Authority v. Friends of the Eel River, U.S. Supreme Ct. Case No. 17-915, which presented this issue: “Whether citizen suits that seek to enforce state environmental approval requirements against a state-owned railroad by enjoining activities subject to the [Surface Transportation Board]’s exclusive jurisdiction are categorically preempted by [the Interstate Commerce Commission Termination Act of 1995].” The high court’s denial of review left undisturbed the California Supreme Court’s novel decision holding state public entity NCRA’s railroad project on its own line was subject to CEQA (and also onerous and delay-producing CEQA litigation) as an act of “self-governance”, whereas private rail carriers are exempt from these “regulatory” burdens by virtue of federal preemption under ICCTA. (My post on the California Supreme Court’s decision can be found here.)
Continue Reading When “Tigers Eat Their Young” – Federal Preemption Of CEQA In Context Of Railroad Projects Will Continue To Present Complex Issues Following U.S. Supreme Court’s Denial of Certiorari In Friends Of Eel River Case
SB 743 was enacted in 2013 to further California’s efforts to reduce GHG emissions by encouraging transit-oriented, infill development – a strategy announced in SB 375, the “Sustainable Communities and Climate Protection Act of 2008.” As part of SB 743, the Legislature enacted Public Resources Code § 21099(d)(1), which provides: “Aesthetic and parking impacts of a residential, mixed-use residential, or employment center project on an infill site within a transit priority area shall not be considered significant impacts on the environment.” In an opinion filed February 28, and subsequently certified for publication on March 22, 2018, the Second District Court of Appeal (Division 7) applied § 21099(d)(1) and held that it exempted from CEQA review alleged parking impacts of a 68-acre, mixed-use, infill project, located a quarter-mile from the Covina Metrolink commuter rail station, which the City approved via Mitigated Negative Declaration (MND) three months after the statute’s effective date. Covina Residents for Responsible Development v. City of Covina (City Ventures, Inc., et al., Real Parties in Interest) (2018) 21 Cal.App.5th 712. In addition to rejecting plaintiff/appellant CRRD’s CEQA challenges to the project, the Court of Appeal rejected its Subdivision Map Act (SMA) arguments and affirmed the trial court’s judgment denying its writ petition.
Continue Reading Redrawing CEQA’s “Parking” Lines? Second District Holds Parking Impacts of Covina Mixed-Use, Transit-Oriented Infill Project Are Statutorily Exempt From CEQA Review, Rejects Related Map Act Challenge