Exhaustion

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In an opinion filed April 18, and belatedly ordered published on May 10, 2023, the Sixth District Court of Appeal upheld the City of San Jose’s (City) certification of a final Supplemental EIR (FSEIR) for development of three high-rise office towers (the “Project”) on an eight-acre downtown site containing several historic structures which the Project required to be demolished. Preservation Action Council of San Jose v. City of San Jose (SJ Cityview, LLC, Real Party in Interest) (2023) 91 Cal.App.5th 517. In affirming the trial court’s judgment denying Preservation Action Council of San Jose’s (Appellant) petition for writ of mandate, the Court rejected Appellant’s arguments that the FSEIR failed to adequately analyze and provide compensatory mitigation for the historic buildings and failed to adequately respond to comments on those issues.Continue Reading Sixth District Holds Downtown San Jose Office Project FSEIR’s Brief Discussion And Rejection of “Compensatory” Mitigation for Historic Buildings Razed By Project Was Informationally Adequate Under CEQA Based On City’s Unchallenged Factual Finding That No Similar Historic Buildings Existed Elsewhere In City’s Downtown

In a 72-page published opinion filed March 30, 2023, the First District Court of Appeal (Div. 4) affirmed in full the trial court’s judgment, which upheld the EIR for the Oakland Waterfront Ballpark District Project (project) with the sole exception of its wind mitigation measure.  East Oakland Stadium Alliance, et al v. City of Oakland, et al (Athletics Investment Group, et al, Real Parties in Interest) (2023) 89 Cal.App.5th 1226.  In doing so, the Court’s lengthy opinion touched on and analyzed numerous interesting and important CEQA topics.Continue Reading First District Affirms Judgment Rejecting All CEQA Challenges To Oakland A’s Ballpark Development EIR Except Improper Deferral of Wind Impacts Mitigation

In a published decision filed February 16, 2023, the Second District Court of Appeal (Division 7) affirmed a judgment denying a CEQA writ petition challenging approval of a single-family home expansion project because the petitioner group failed to exhaust administrative remedies.  Arcadians for Environmental Preservation v. City of Arcadia (Julie Wu, et al., Real Parties in Interest) (2023) 88 Cal.App.5th 418.  The Court held that the generalized and unelaborated objections, made by a member of petitioner in the City’s administrative proceedings, to the City’s Class 1 categorical exemption determination for the project failed to fairly apprise the City of petitioner’s specific objections so as to preserve them for litigation.Continue Reading Neighbor-Led Group Opposing Single-Family Home Expansion Project Failed To Exhaust Administrative Remedies By Making Sufficiently Specific Objections To City’s CEQA Class 1 Categorical Exemption Determination

As all CEQA practitioners know, a prospective petitioner in a writ proceeding challenging a CEQA determination must first exhaust available administrative remedies as a prerequisite to filing suit.  But which remedies are subject to that requirement?  That is the question presented in the recent case of American Chemistry Council v. Dept. of Toxic Substances Control (5th Dist. 2022) 86 Cal.App.5th 146, originally filed on November 18, 2022, and certified for publication on December 12, 2022.

The American Chemistry Council case deals with the interplay of CEQA with another statutory scheme, the so-called “Green Chemistry” law (Health & Safety Code, § 25251 et seq.) and its implementing Safer Consumer Products regulations (Cal. Code Regs., tit. 22, § 69501 et seq.), in the context of exhaustion of administrative remedies.  The case illustrates the sometimes perilous position of a CEQA practitioner seeking to satisfy the exhaustion requirement while avoiding the running of the very short statutory limitations period within which a CEQA action must be commenced.Continue Reading Fatal “Exhaustion”: Fifth District Holds CEQA’s Statute of Limitations Ran Out On Plaintiff’s Claim While Plaintiff Thought It Was Still In Process Of Exhausting Administrative Remedies

While CEQA is a complicated area of law, often criticized as a “plaintiff’s sandbox,” CEQA litigation is not a “free-for-all” immune from malicious prosecution actions when it is unsuccessfully pursued with malice and without probable cause.  Such is the teaching of the First District Court of Appeal’s December 28, 2022 published opinion in Charles Jenkins et al v. Susan Brandt-Hawley et al (1st Dist., Div. 2, 2022) 86 Cal.App.5th 1357, which affirmed the trial court’s order denying an anti-SLAPP motion and allowing a malicious prosecution action to proceed against a prominent CEQA attorney and her law firm.Continue Reading When CEQA Litigation Turns Tortious: First District Affirms Order Denying Anti-SLAPP Motion, Allows Malicious Prosecution Action To Proceed Against Counsel Who Brought Unsuccessful CEQA Challenge To Single-Home Project

On July 13, 2022, the California Supreme Court denied numerous depublication requests with respect to, and declined to review on its own motion, the First District Court of Appeal’s decision in Save the Hill Group v. City of Livermore (2022) 76 Cal.App.5th 1092, S. Ct. Case No. S274754; Ct. App. Case No. A161573.  My May 26, 2022 post on the League of Cities’ and CSAC’s depublication requests, which were shortly thereafter followed by further depublication requests by Respondent City of Livermore and the California Building Industry Association, can be found here, and my April 4, 2022 post analyzing the Court of Appeal’s opinion which can be found here.
Continue Reading California Supreme Court Denies Depublication Requests In Livermore CEQA Case Addressing “No Project” Alternative

On May 25, 2022, the League of California Cities (“League”) and California State Association of Counties (“CSAC”) filed a 10-page letter with the California Supreme Court requesting it to depublish the First District Court of Appeal’s recent decision in Save the Hill Group v. City of Livermore, Case No. A161573 (my April 4, 2022 post on which can be found here).
Continue Reading League of California Cities and CSAC File Request for Depublication of First District Decision Addressing Sufficiency of CEQA-Mandated “No Project” Alternative In Housing Project EIR

In a published decision filed March 30, 2022, the First District Court of Appeal (Division 5) reversed a trial court judgment upholding the reissued final environmental impact report (“RFEIR”) for a 44-single family residence project on a unique, species- and habitat- rich 32-acre site in the City of Livermore’s Garaventa Hills area.  Save the Hill Group v. City of Livermore (Lafferty Communities, Inc., Real Party in Interest) (2022) 76 Cal.App.5th 1092. Both the trial court and Court of Appeal agreed that the RFEIR’s analysis of the “no project” alternative was substantively inadequate, because it lacked information about the feasibility of purchase and preservation options that was necessary for the City Council to make an informed, reasoned decision, but the Court of Appeal disagreed with the trial court’s conclusion that Petitioner/Appellant Save the Hill’s failure to exhaust on this issue barred judicial consideration of it.  The Court of Appeal rejected Appellant’s remaining arguments that the RFEIR’s analysis and mitigation of the project’s vernal pool fairy shrimp (“VPFS”) and wetlands impacts were inadequate, and that its identified compensatory mitigation for permanent sensitive habitat loss was inadequate.  (In a brief concluding portion of the opinion that won’t be further discussed here, the Court also held Appellant had forfeited and lacked standing to raise the issue of City’s alleged mitigation obligations under two prior settlement agreements to which Appellant was not a party.)
Continue Reading First District Holds EIR’s Analysis of “No Project” Alternative To City of Livermore Residential Development Violated CEQA By Failing To Discuss Feasibility Of Purchasing And Preserving Habitat-Rich Garaventa Hills Project Site, Also Addresses Significant Issues Involving Exhaustion Doctrine And Adequacy of Mitigation

In an opinion filed November 15, and later ordered published on December 14, 2021, the Sixth District Court of Appeal reaffirmed the basic CEQA principle that required environmental review and analysis must precede project approval, and it applied that principle to invalidate the California Coastal Commission’s (Commission) approval of a Coastal Development Permit (CDP) for a residential subdivision project in Monterey County. Friends, Artists and Neighbors of Elkhorn Slough v. California Coastal Commission (Heritage/Western Communities, Ltd., et al., Real Parties in Interest) (2021) 72 Cal.App.5th 666. While the dispositive rule is a simple one, the case’s more complex facts and procedural history make it interesting – and somewhat disturbing – on a number of levels.
Continue Reading Sixth District Holds Coastal Commission’s Post-Approval Analysis of Coastal Development Permit’s Environmental Impacts Violates CEQA

In a 53-page published opinion filed October 8, 2021, the Fourth District Court of Appeal mostly affirmed, but reversed in part, a judgment in a CEQA action challenging two sets of projects of the City of San Diego to underground overhead utility wires in several neighborhoods.  McCann v. City of San Diego (2021) 70 Cal.App.5th 51.  The opinion addressed and resolved a number of significant and interesting CEQA claims and issues involving the exhaustion doctrine; procedures for administratively appealing CEQA exemption determinations (and related due process notice issues); piecemealing; project description; aesthetics; and proper methodology for determining the significance of GHG emissions impacts through assessing a project’s consistency with a local Climate Action Plan (CAP).
Continue Reading Fourth District Addresses Numerous Significant CEQA Issues In Action Challenging City of San Diego’s Utility Undergrounding Projects