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

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

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

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

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

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

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

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

Potential recovery – or payment – of plaintiffs’ attorneys fees is always a factor to be considered in prosecuting and defending CEQA suits.  The stakes in this calculus just got a little higher with a recent decision making it easier for CEQA plaintiffs to recover fees and expanding the scope of proceedings for which fees can be recovered.  In a pithy opinion (typical of Presiding Justice Gilbert), the Second District Court of Appeal reversed a trial court’s order partially denying successful CEQA petitioners’ motion for attorneys’ fees under Code of Civil Procedure section 1021.5, the private attorney general statute.  (Edna Valley Watch v. County of San Luis Obispo (2011) 197 Cal.App.4th 1312.)  In so doing, it held the trial court erred in finding (1) that fees incurred in administrative proceedings were not recoverable under the statute, and (2) that a nonpecuniary “personal stake” of petitioner in the outcome of the litigation could preclude a fee recovery.

Section 1021.5 provides in part:

Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if:  (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement … are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.
Continue Reading Successful CEQA Petitioners May Recover Attorneys’ Fees For Administrative Proceedings And Are Not Disqualified By Nonpecuniary Stake

Everyone seems to talk about abuses of the CEQA process and meaningful CEQA reform, but nothing ever seems to get done, much to the chagrin of developers who find themselves the target of CEQA litigation.  The California legislature may have taken a small, but important, step toward rectifying this situation with its 2010 enactment of Public Resources Code Section 21169.11.  The statute was enacted as part of an urgency measure, to curb litigation abuses and provide relief from frivolous claims made in CEQA actions.  (SB 1456 (Stats. 2010, Ch. 496.))

In brief, the new statute provides:

  • Where a court determines a claim made in the course of a CEQA action is frivolous, i.e., totally and completely without merit, it “may impose an appropriate sanction, in an amount up to ten thousand dollars ($10,000)”
  • “The sanction may be imposed upon the attorneys, law firms, or parties responsible for the violation.”
  • The sanctions motion may be made “at any time after a petition has been filed pursuant to this division, but at least 30 days before the hearing on the merits.”
    Continue Reading CEQA Sanctions Statute: Effective Deterrent To Abuse?