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) ___ Cal.App.5th ___.  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

On September 13, 2011, I began the endeavor of writing Miller Starr Regalia’s CEQA Developments blog.  Ten years and 358 blog posts later, it continues to be a challenging and rewarding task.  Since my inaugural post (which can be viewed here) was a “top ten” list of CEQA litigation mistakes to avoid, I thought an appropriate tenth anniversary post might be a list of the ten most significant CEQA case law developments over the past decade.  My “top ten” list is definitely subjective, is limited to Supreme Court decisions, and (by its very nature) fails to include many important judicial developments.  Nonetheless, here it is (with the decisions listed in no particular order):

Continue Reading A Decade of CEQA Developments

In a published decision filed August 17, 2021, the Fifth District Court of Appeal affirmed the trial court’s judgment directing issuance of a writ of mandate ordering Inyo County to vacate three resolutions of necessity that authorized its condemnation of three Owens Valley landfill properties, including appurtenant water rights, owned by the Los Angeles Department of Water and Power (LADWP).  Los Angeles Dept. of Water & Power v. County of Inyo (2021) 67 Cal.App.5th 1018. The County operates three landfills on the properties pursuant to leases from LADWP.  In the published part of the opinion, the Court of Appeal held that CEQA’s issue exhaustion requirement did not apply to LADWP’s challenge to the County’s exemption determinations because the County failed to provide adequate notice of them, thus depriving LADWP of an opportunity to be heard on the issue.  As a matter of law, the Court also held the County improperly relied on the existing facilities exemption for the project.

Continue Reading Fifth District Holds Issue Exhaustion Not Required Where Agency Gave No Notice of Intent To Rely On CEQA Exemption Prior to Hearing, And Existing Facilities Categorical Exemption Does Not Apply to Unlined Landfills As A Matter of Law

In a partially published unanimous opinion filed June 16, 2021, authored by a jurist who is also a noted CEQA expert (Acting Presiding Justice Ronald Robie), the Third District Court of Appeal affirmed the trial court’s judgment denying a writ petition challenging El Dorado County’s mitigated negative declaration (MND) for and approval of the Newtown Road Bridge at South Fork Weber Creek Replacement Project.  Newtown Preservation Society, et al. v. County of El Dorado, et al. (3d Dist. 2021) 65 Cal.App.5th 771.  In the published portion of its opinion, the Court of Appeal held that petitioners/appellants erroneously framed the “fair argument” test in terms of the project having “potentially significant impacts on resident safety and emergency evacuation,” whereas the correct test is “whether the record contains substantial evidence that the project may have a significant effect on the environment or may exacerbate existing environmental hazards.”  It held appellants “failed to carry their burden of showing substantial evidence supports a fair argument of significant environmental impact in that regard.”  (In the unpublished portion of its opinion, which won’t be analyzed in further detail in this post, the Court held the County did not impermissibly defer mitigation, and it declined to consider two other arguments because they added nothing to the fair argument analysis and/or constituted new theories or arguments raised for the first time on appeal.)

Continue Reading Flunking CEQA’s “Fair Argument” Test: Third District Affirms Judgment Upholding MND for El Dorado County Bridge Replacement Project, Rejects Arguments Based on Alleged Significant Impacts on Fire Evacuation Routes During Construction As Insufficient To Require EIR

In an 85-page opinion filed March 25, and modified and certified for partial publication on April 23, 2021, the First District Court of Appeal affirmed the Napa County Superior Court’s judgment denying a writ petition challenging the County’s EIR and approvals for an expansion of Syar Industries, Inc.’s (Syar) aggregate mining operations at a quarry that has existed since the 1800s.  Stop Syar Expansion v. County of Napa (1st Dist. 2021) 63 Cal.App.5th 444.  The Court belatedly published about 25 pages of its lengthy opinion, which portions addressed basic CEQA principles, including standard of review and exhaustion principles, and the interplay of CEQA and general plan consistency issues.

Continue Reading First District Affirms Judgment Rejecting CEQA and General Plan Consistency Challenges to Napa County’s EIR for Syar Quarry Expansion Project, Addresses Significant Exhaustion and Land Use Issues

Falling more into the category of “spring cleaning” than “breaking news,” readers should note that a Second District decision, published last spring and covered in this blog, was ordered depublished by the California Supreme Court late last summer.

Continue Reading Supreme Court Denies Review of And Depublishes Second District Refinery Project Case Addressing CEQA Baseline Issues

In a published opinion filed on February 1, 2021, in an action arising from plaintiffs/appellants’ (“plaintiffs”) “potpourri” of unsuccessful legal challenges to the City of San Francisco’s decision to remove a controversial public monument celebrating California’s pioneer era, the First District Court of Appeal upheld dismissal of a CEQA claim for failure to exhaust administrative remedies.  Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470.

Continue Reading Failure to Pursue and Exhaust Administrative Appeal Remedy Results In Forfeiture of CEQA Challenge To Categorical Exemption Despite Lower Body’s Defective Hearing Notice

“The life of the law has not been logic: it has been experience.” – Oliver Wendell Holmes, Jr., The Common Law (1881)

“CEQA discourse has become increasingly abstract, almost medieval in its scholasticism.” – former California Governor Edmund G. (“Jerry”) Brown, Jr.

by Arthur F. Coon

On November 24, 2020, the Fifth District Court of Appeal filed its partially published opinion in the latest installment of the long-running CEQA litigation over Fresno County’s approval of the Friant Ranch project.  Sierra Club v. County of Fresno (Friant Ranch, L.P., Real Party in Interest) (2020) 57 Cal.App.5th 979.  The litigation involves a 942-acre mixed-use development project (2500 residential units, 250,000 square feet of commercial space, 460 acres of open space) for which the Notice of Preparation (NOP) of the EIR was issued in 2007; it has generated an earlier appellate opinion (see my 6/16/14 post here) and a Supreme Court opinion (see my 12/28/18 post here) addressing important standard of review issues centered on the adequacy of the project EIR’s air quality impacts discussion.

Continue Reading Remedial Legal Logic: Fifth District Doubles Down On Split with Other Districts in Holding CEQA Doesn’t Allow Limited Writ Remedy of Partial EIR Decertification – But Does It Really Matter?