Exemptions

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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

In a published opinion filed March 25, 2016, the Fourth District Court of Appeal affirmed the trial court’s judgment denying a writ petition that challenged a 2013 ordinance of the City of Upland which expressly prohibited mobile marijuana dispensaries within the City. Union of Medical Marijuana Patients, Inc. v. City of Upland (4th Dist., Div. 1, 2016) 245 Cal.App.4th 1265, 2016 WL 1169302, Case No. D069293.  Because the ordinance merely restated a ban already in effect under an existing 2007 ordinance that was never challenged under CEQA, it lacked the potential to cause direct or reasonably foreseeable indirect physical changes in the environment and was therefore not a “project” subject to CEQA.
Continue Reading Fourth District Holds CEQA’s Definition of “Project” Does Not Encompass Municipal Ordinance Merely Restating Existing Prohibition of Mobile Marijuana Dispensaries

A new year often brings fresh perspective.  With 2016 still in its infancy, it is natural to reflect back on what has been and also to contemplate what is yet to come.  The California Supreme Court’s recent CEQA decisions, and its current docket of CEQA cases awaiting decision, provide ample opportunity for both of these basic human impulses.
Continue Reading Supreme Engagement: CEQA’s Continuing Saga In California’s High Court

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

In the Spring of last year, I posted an analysis of what I called the Third District Court of Appeal’s “exceptionally thorough and well-reasoned opinion” in Citizens for Environmental Responsibility v. State of California ex rel 14th District Agricultural Association (3d Dist. 2014) 224 Cal.App.4th 152, rev. gtd. and action deferred 7/9/14. (See, “Third District Construes CEQA Guidelines’ Class 23 Categorical Exemption And “Unusual Circumstances” Exception In Rejecting Challenge To Watsonville Rodeo Event”, by Arthur F. Coon, posted April 7, 2014.) In concluding that post, I noted that the Third District’s position on application of the “unusual circumstances” exception to categorical exemptions was “very clear” and “also diametrically opposed to that taken by the First District in a case in which the California Supreme Court has granted review, and which [had at that time] been pending for almost two years in that Court, Berkeley Hillside Preservation et al. v. City of Berkeley, et al., Case No. S20116.”
Continue Reading Not Its First CEQA Rodeo: Third District Again Upholds Class 23 Categorical Exemption For 2011 Watsonville Rodeo Event On Remand From Supreme Court

When California local governments stretch their resources too far to regulate private conduct and property rights in the name of environmental protection, CEQA can make it quite onerous to undo what has been done. And one can rest assured that if any additional trees might be allowed to “fall in the forest,” CEQA plaintiffs will be close by with their ears peeled to prevent the tragedy. Such are the fundamental philosophical lessons of the Sixth District Court of Appeal’s recently published opinion in Save Our Big Trees v. City of Santa Cruz (2015) 241 Cal.App.4th 694, filed on October 23, 2015.
Continue Reading If A Tree Falls In The (Urban) Forest … Does CEQA Apply? Sixth District Holds City Of Santa Cruz’s Amendment Of Tree Protection Ordinance Not Categorically Exempt

On remand following a landmark California Supreme Court decision, the First District Court of Appeal filed its opinion affirming the trial court’s judgment on September 23 and later ordered it published on October 15, 2015. Berkeley Hillside Preservation, et al. v. City of Berkeley (1st Dist., Div. 4, 2015) 241 Cal.App.4th 943. Readers can refer to my previous post for a complete treatment of the case’s facts and the Supreme Court’s rulings. Key aspects and points of the Court of Appeal’s 19-page opinion on remand include:
Continue Reading Berkeley Hillside CEQA Cat Ex Case Redux: Kapors Get Their Mansion, First District’s Belatedly Published Opinion Upholds City’s Decision That “Unusual Circumstances” Exception Does Not Apply

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”)

On September 9, 2015, the California Supreme Court denied review and decertified the Fourth District Court of Appeal’s previously published opinion in Albert Thomas Paulek v. Western Riverside Regional Conservation Authority, which had appeared at 238 Cal.App.4th 583. A discussion of the issues presented by the case and my analyses of the Court of Appeal’s reasoning on them can be found in my post on the originally published opinion. (See “Fourth District Holds Agency’s Removal of Conservation Designation From Land Formerly Protected Under MSHCP Is ‘Project’ Subject to CEQA; Class 7 and 8 Categorical Exemptions for Environmentally Protective Regulatory Actions Do Not Apply,” by Arthur F. Coon, posted July 2, 2015.)

The Supreme Court’s depublication order means that while the decision remains binding on the parties to the case, it will not be citable as precedential authority under California law.Continue Reading Supreme Court Depublishes Lengthy CEQA Categorical Exemption Case

In a published decision filed September 17, 2015, the First District Court of Appeal affirmed the trial court’s judgment granting a writ of mandate and finding that a proposed land exchange agreement was not statutorily exempt from CEQA review. Defend Our Waterfront v. California State Lands Commission, et al (San Francisco Waterfront Partners II, LLC, et al) (1st Dist., Div. 4, 2015) 240 Cal.App.4th 570. The underlying facts are straightforward, as is the Court’s holding interpreting CEQA’s statutory exemption that applies to “settlements of title and boundary problems by the State Lands Commission and to exchanges or leases in connection with those settlements.” (Pub. Resources Code, § 21080.11.) Perhaps more interesting, however, is the Court’s treatment (partly in dicta) of CEQA’s statutory standing and exhaustion requirements as embodied in Public Resources Code § 21177.
Continue Reading First District Applies CEQA Exhaustion/Standing Rules, Upholds Judgment Rejecting Claim of Statutory Exemption for Controversial State Lands Commission Land Exchange Agreement