In an opinion filed September 10, and later ordered partially published on October 9, 2015, the Court of Appeal affirmed the substance of a judgment upholding an EIR for a regional shopping center renovation project in Carlsbad, California, reversing only with respect to certain cost award issues treated in an unpublished portion of the opinion. North County Advocates v. City of Carlsbad (Plaza Camino Real, LP, et al., Real Parties in Interest) (4th Dist., Div. 1, 2015) 241 Cal.App.4th 94. The published portions of the opinion address the case’s facts, applicable CEQA rules and standards of review, and traffic baseline issues; the unpublished portions address issues concerning traffic mitigation measures, the adequacy of the City of Carlsbad’s (“City”) responses to comments, and the propriety of the various aspects of the trial court’s record preparation cost awards that were made to the City and real parties (“Westfield”) as prevailing parties.
Continue Reading Fourth District Addresses CEQA Baseline Issues In Partially Published Opinion Upholding EIR For Carlsbad Shopping Mall Renovation
Fees and Costs
Fourth District Holds Losing CEQA Plaintiff’s Mooted Appeal Was Not “Catalyst” To City’s Revocation Of Project Entitlements After Developer Abandoned Project; Trial Court’s Denial Of Private Attorney General Fee Motion Affirmed
By Arthur F. Coon on
In an opinion filed June 8, and ordered published on July 6, 2015, the Fourth Appellate District Court of Appeal affirmed the trial court’s judgment denying a CEQA plaintiff’s motion for attorneys’ fees under CCP § 1021.5, California’s private attorney general statute. Coalition for a Sustainable Future In Yucaipa v. City of Yucaipa (Target Stores, Inc., Real Party In Interest) (4th Dist., Div. 2, 2015) 238 Cal.App.4th 513. The Court’s opinion explicates in detail and applies the rules governing such motions when brought on a catalyst theory, and does so in a rather unique procedural context – one in which the moving party was an unsuccessful CEQA plaintiff whose appeal of an adverse judgment became moot as a result of the developer’s abandonment of the challenged project for reasons wholly unrelated to plaintiff’s action.
Continue Reading Fourth District Holds Losing CEQA Plaintiff’s Mooted Appeal Was Not “Catalyst” To City’s Revocation Of Project Entitlements After Developer Abandoned Project; Trial Court’s Denial Of Private Attorney General Fee Motion Affirmed
Sixth District Applies CEQA’s “Fair Argument” Standard, Holds That Despite Project’s Compliance With Local Noise Ordinance, EIR Rather Than Mitigated Negative Declaration Is Required Based On Factual, Non-Expert Evidence Of Noise And Traffic Safety Impacts
By Arthur F. Coon on
On May 7, 2015, the Sixth District Court of Appeal filed a published opinion addressing numerous issues of interest under CEQA’s “fair argument” test for preparing an Environmental Impact Report (“EIR”). Keep Our Mountains Quiet v. County of Santa Clara (Candice Clark Wozniak, as Trustee, Real Party in Interest) (6th Dist. 2015) 236 Cal.App.4th 714.
Continue Reading Sixth District Applies CEQA’s “Fair Argument” Standard, Holds That Despite Project’s Compliance With Local Noise Ordinance, EIR Rather Than Mitigated Negative Declaration Is Required Based On Factual, Non-Expert Evidence Of Noise And Traffic Safety Impacts
Winners Beware – Fourth District Upholds Trial Court’s Discretion To Drastically Reduce Successful CEQA Plaintiff’s Fees In Granting CCP §1021.5 “Private Attorney General” Award
By Arthur F. Coon on
In an opinion filed March 18 and belatedly ordered published on April 13, 2015, the Fourth District Court of Appeal upheld a trial court’s discretion to award only $19,176 in attorneys’ fees under Code of Civil Procedure § 1021.5 to a successful CEQA plaintiff (SOURCE) who sought $221,198 based on a $110,599 “lodestar” with a multiplier of two. Save Our Uniquely Rural Community Environment v. County of San Bernardino (Al-Nur Islamic Center, Real Party in Interest) (4th Dist., Div. 2, 2015) 235 Cal.App.4th 1179. SOURCE, an organization of individuals, had successfully challenged San Bernardino County’s mitigated negative declaration (MND) and conditional use permit (CUP) for real party in interest Al-Nur Islamic Center’s proposed 7,512-square foot Islamic community center and mosque to be located on a 1.54-acre parcel in a residential part of the unincorporated county. Rejecting 5 of its 6 CEQA arguments, the trial court granted SOURCE’s writ petition on the sole ground that county failed to properly analyze the project’s environmental impacts from wastewater disposal, and ordered county to adequately analyze such impacts under CEQA.
Continue Reading Winners Beware – Fourth District Upholds Trial Court’s Discretion To Drastically Reduce Successful CEQA Plaintiff’s Fees In Granting CCP §1021.5 “Private Attorney General” Award
Work Done Under Unchallenged CEQA Emergency Exemption Held Part Of Existing Environment Baseline In Subsequent CEQA Challenge To Permanent Permits
By Arthur F. Coon on
In a decision filed January 29, and belatedly ordered published on February 18, 2015, the Fourth District Court of Appeal rejected numerous CEQA (and other) challenges to the City of San Diego’s regular, after-the-fact coastal and site development permits authorizing already-completed emergency storm drainage repair work as well as site revegetation at a hillside site in La Jolla. CREED-21 v. City of San Diego (4th Dist., Div. 1, 2015) 234 Cal. App. 4th 488.) In so doing, it reversed the trial court’s decision granting a writ of mandate setting aside the City’s approvals, and made crystal-clear that work performed and completed under CEQA’s emergency exemption becomes part of the “existing conditions” environmental baseline for purposes of a subsequent CEQA challenge to the permanent permits when the exemption itself is not timely challenged.
Continue Reading Work Done Under Unchallenged CEQA Emergency Exemption Held Part Of Existing Environment Baseline In Subsequent CEQA Challenge To Permanent Permits
How CEQA’s Administrative Record Preparation Process Could Be Reformed By Eliminating CEQA Petitioners’ Statutory Option To Prepare The Record
By Arthur F. Coon on
I recently analyzed proposed legislation (SB 122) seeking to create an alternative procedure for preparation of the CEQA administrative record concurrently with administrative proceedings on a project and prior to any litigation challenging it. (See “Latest Proposed CEQA Legislation (SB 122) Seeks To Reform Administrative Record Process – At A Price,” by Arthur F. Coon, posted January 22, 2015.) Under proposed SB 122 the project applicant could initiate the alternative procedure by request to the public agency and, if the procedure were agreed to by the agency, an expedited and statutorily complete record would be prepared. However, this would be solely at the applicant’s cost and without any ability to recover that cost even if successful in subsequent litigation.
Continue Reading How CEQA’s Administrative Record Preparation Process Could Be Reformed By Eliminating CEQA Petitioners’ Statutory Option To Prepare The Record
Latest Proposed CEQA Legislation (SB 122) Seeks To Reform Administrative Record Process – At A Price
By Arthur F. Coon on
California Senate Bill No. 122 (SB 122), introduced by Senators Jackson, Hill and Roth on January 15, 2015, appears to be the newest stab at legislative CEQA “reform.” But numerous of SB 122’s embryonic provisions raise questions as to whether this proposed curative measure might have some deleterious side effects.
Continue Reading Latest Proposed CEQA Legislation (SB 122) Seeks To Reform Administrative Record Process – At A Price
Attorney Labor For Preparing CEQA Administrative Record Is Recoverable Cost Where Specialized Knowledge Required, Holds Fourth District in Partially Published Opinion
By Arthur F. Coon on
In a partially-published opinion filed September 29, 2014, the Fourth District Court of Appeal affirmed an order and judgment permitting the County of San Diego to recover actual labor costs incurred for an attorney and paralegals to take over and complete preparation of an administrative record in a CEQA case where the petitioner had elected, but failed, to do so. The Otay Ranch, L.P. v. County of San Diego (2014) 230 Cal.App.4th 60, Case No. D064809.
Continue Reading Attorney Labor For Preparing CEQA Administrative Record Is Recoverable Cost Where Specialized Knowledge Required, Holds Fourth District in Partially Published Opinion
CEQA Administrative Record Preparation Costs – Who Pays and When? First District Provides Guidance In Coalition For Adequate Review v. City and County of San Francisco
By Arthur F. Coon on
In a published decision filed September 15, 2014, the First District Court of Appeal reversed and remanded a trial court’s post-judgment order granting an unsuccessful CEQA petitioner’s motion to tax the entire $64,144 cost bill of respondent City. Coalition for Adequate Review v. City and County of San Francisco (1st Dist. 2014) 229 Cal.App.4th 1043, Case No. A135512.
Continue Reading CEQA Administrative Record Preparation Costs – Who Pays and When? First District Provides Guidance In Coalition For Adequate Review v. City and County of San Francisco
How Recent CEQA Cases Show The Need For Legislative CEQA Reform
By Arthur F. Coon on
Posted in Administrative Record, Exemptions, Fees and Costs, Legislation, Litigation, Reform, Remedies
Some CEQA practitioners think the sheer volume of published CEQA opinions demonstrates the need for reform – res ipsa loquitur, so to speak. Recently a litigation mentor of mine, a brilliant man who was at the forefront of CEQA litigation more than 20 years ago when he left my firm to teach law, asked me: “What’s with this Berkeley Hillside Preservation case? Are EIRs really now required for single family homes?” (Note: The Supreme Court has now granted review of that case.) Another leading CEQA practitioner and author views recent legislative efforts at CEQA streamlining and litigation reform as largely ineffectual, and sees no meaningful reforms on the horizon. I tend to share these views, as indicated at the conclusion of a May 22, 2012 post I co-authored with Nadia Costa, on the Fifth District’s Consolidated Irrigation District (“CID”) decision, “Breaking Down CEQA’s Administrative Record Statute: Fifth District Explains What’s In and What’s Out.” This is the “follow-up” post explaining why that case struck a “CEQA reform” chord with me.
Continue Reading How Recent CEQA Cases Show The Need For Legislative CEQA Reform