CEQA’s Class 32 categorical exemption for “infill development” applies to proposed developments within city limits on sites of five or fewer acres substantially surrounded by urban uses, where the site has no habitat value for special status species, can be adequately served by all required utilities and public services, and the project would not have significant traffic, noise, air quality, or water quality impacts. (CEQA Guidelines, § 15332(b)-(e).)  But another important qualification is that the project must be “consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations.” (§ 15332(a).)  A recent Fourth District decision addressed this key requirement of the infill exemption, and upheld application of the Class 32 exemption to the City of San Diego’s approval of a project proposing seven (7) detached residential condominium units on a steeply sloped, environmentally sensitive half-acre site –despite general plan minimum density policies that would ordinarily require 16 to 23 dwelling units on a parcel of that size.  Holden v. City of San Diego (IDEA Enterprises, LP, Real Party in Interest) (2019) 43 Cal.App.5th 404.

Continue Reading Fourth District Upholds CEQA Class 32 Infill Exemption For Small Residential Condo Project On Environmentally Sensitive Lands As Consistent With San Diego’s General Plan Despite Failure To Meet Recommended Minimum Density

Introduction And Overview

On August 19, 2019, the California Supreme Court issued its unanimous 38-page opinion, authored by Chief Justice Cantil-Sakauye, in the CEQA “project definition” case we’ve been tracking with interest.  Union of Medical Marijuana Patients, Inc. v. City of San Diego (California Coastal Commission, Real Party in Interest) (2019) 7 Cal.5th 1171, Case No. S238563.  As anticipated based on the high court’s questioning and remarks at oral argument (see “Supreme Court Hears Oral Argument in CEQA Project Definition Case,” posted June 6, 2019), it reversed the Fourth District Court of Appeal’s decision that the City’s approval of the medical marijuana dispensary ordinance at issue was not a CEQA “project”; accordingly, it held that the City was required to treat it as such and “proceed to the next steps of the CEQA analysis.”


Continue Reading Not A CEQA “Project”? Not So Fast, Lead Agency! Supreme Court Reverses Fourth District’s Decision That San Diego’s Adoption of Medical Marijuana Dispensary Ordinance Was Not A Project Requiring CEQA Review

The California Supreme Court heard oral arguments in an important case we’ve been following involving CEQA’s definition of a “project” on the afternoon of June 4, 2019, and took the matter under submission.  The case – Union of Medical Marijuana Patients v. City of San Diego (California Coastal Commission, Real Party in Interest), No. S238563 – involves a City of San Diego ordinance authorizing (as a new use in industrial/commercial zones) and restricting the location and manner of operation of medical marijuana dispensaries within the City, and plaintiff’s challenge to the City’s determination that its adoption of the ordinance was not a “project” for purposes of having to undergo CEQA review.  The Court’s grant of review encompassed the issues whether the particular ordinance is a CEQA project and also whether zoning ordinances in general are CEQA projects.

Continue Reading Supreme Court Hears Oral Argument In CEQA Project Definition Case

The California Legislature has enacted new Public Resources Code § 21159.25, effective as of January 1, 2019 (Stats. 2018, c. 670 (A.B. 1804)), which extends much of the substance of the existing CEQA Guidelines’ Class 32 categorical exemption for “infill development” (14 Cal. Code Regs., § 15332) to certain multi-family housing projects in urbanized, unincorporated county areas.  While largely patterned after the Class 32 exemption, the statute thus has a few unique and significant twists and limitations, as explained below.

Continue Reading Legislature Enacts New Statutory CEQA Exemption, Modeled After Class 32 Categorical Exemption, For Certain Infill Multifamily Housing Developments In Urbanized, Unincorporated County Areas

Spring now being practically “in the air,” a bit of CEQA “spring cleaning” seems appropriate – so here’s a brief look at the status of some significant CEQA-related cases that are now pending before our Supreme Court, or in which its review has been sought:

Continue Reading Supreme Court CEQA Roundup – March 2019

In a published opinion filed February 13, 2019, the Fourth District Court of Appeal (Division 3) reaffirmed the need for a CEQA litigant challenging a coastal development permit to appeal to the Coastal Commission before suing.  Fudge v. City of Laguna Beach (Hany Dimitry; Real Party in Interest) (2019) 32 Cal.App.5th 193.  The Court refused plaintiff’s invitation to make the simple complex, and followed published precedents requiring a plaintiff to exhaust the statutory administrative remedy of an appeal to the Commission to ripen a litigation challenge.

Continue Reading Coastal Act Trumps CEQA: CDP Challenger Must Administratively Appeal Local Entity’s Approval To Coastal Commission Before Bringing Judicial Action

In a partially published opinion filed January 30, 2019, the First District Court of Appeal (Div. 1) affirmed a judgment denying a writ petition challenging the City of Berkeley’s approval of use permits for three single-family homes on three contiguous hillside parcels.  The Court upheld the City’s use of the CEQA Guidelines § 15303(a) (Class 3) categorical exemption for new construction of small structures, including “up to three single-family residences” in “urbanized areas.”  Berkeley Hills Watershed Coalition v. City of Berkeley (Matthew Wadlund, et al., Real Parties in Interest) (2019) 31 Cal.App.5th 880.

Continue Reading First District Upholds CEQA Class 3 Categorical Exemption For Single Family Residence Projects In Berkeley Hills, Rejects Claim That “Location” Exception Applies Based On Site’s Location Within Mapped Earthquake Fault And Landslide Areas

In an opinion filed December 27, 2018, and later ordered published on January 15, 2019, the Fourth District Court of Appeal (Div. 1) affirmed the trial court’s judgment rejecting CEQA and other challenges to the City of San Diego’s (City) approval of an amended and restated lease of City-owned land containing an oceanfront amusement park in its Mission Beach neighborhood (Belmont Park), which restated lease potentially extends the prior lease term for a significant period.  San Diegans For Open Government v. City of San Diego (Symphony Asset Pool XVI, LLC, Real Party in Interest) (2019) 31 Cal.App.5th 349.

Continue Reading Fourth District Rejects CEQA Challenge To San Diego’s Use of Existing Facilities Categorical Exemption For Mission Beach Amusement Park Lease Amendment and Extension

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.


Continue Reading 2018 CEQA Fall Update: Recent Legislative, Judicial, And Other Developments