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.
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Historic and Cultural Resources
California Supreme Court Grants Review Of Regulatory Taking Issues In San Diego Single Family Residence CEQA Case; Merits Briefs To Be Filed Soon
Most real estate developers would likely agree that, even when correctly applied and complied with, CEQA can be an onerous law which can significantly complicate, delay, increase the cost of, and in some cases (particularly where CEQA litigation is involved) even preclude projects. But what recourse does a project applicant have under the law when CEQA is misapplied – and blatantly so – by a local agency which denies approval of a project that is clearly exempt from CEQA on the meritless basis that extensive (and expensive) CEQA review is required? When the developer’s only recourse is time-consuming and expensive litigation to obtain a writ of mandate setting aside the agency’s illegal action subjecting the project to CEQA, can the developer who succeeds in obtaining the writ recover from the public agency compensation and damages resulting from the temporary “taking” of all reasonable economic use of its property?
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Fourth District Rejects CEQA Challenge To San Diego’s Use of Existing Facilities Categorical Exemption For Mission Beach Amusement Park Lease Amendment and Extension
By Arthur F. Coon on
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.
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Delineating CEQA’s Scope: First District Holds CEQA Does Not Apply To Ministerial Approval Of Multifamily Housing Project Allowed By Right Under Zoning Where City’s Discretion Was Limited To Design Review
In an opinion filed December 18, 2018, and later ordered published on January 10, 2019, the First District Court of Appeal affirmed a judgment denying appellant citizen groups’ writ petition challenging the City of St. Helena’s approval of an 8-unit, multifamily housing project and related demolition and design review. McCorkle Eastside Neighborhood Group, et al. v. City of St. Helena, et al. (2019) 31 Cal.App.5th 80. The decision applied the basic principle that CEQA does not apply to ministerial project approvals, and further clarified that CEQA does not apply to “mixed” discretionary/ministerial approvals where the “discretionary component” does not give the agency the authority to mitigate environmental impacts. It held that because the City’s discretion under its local design review ordinance does not extend to addressing environmental effects it does not implicate CEQA, and therefore the City’s reliance on the CEQA Guidelines’ Class 32 exemption was unnecessary.
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When CEQA Gets Ugly: Third District Holds Lay Public Opinion Supports Fair Argument That Project May Have Significant Aesthetic Effect Requiring EIR
By Arthur F. Coon on
In a published opinion filed December 17, 2018, the Third District Court of Appeal affirmed a judgment granting a writ setting aside El Dorado County’s approval of, and related Mitigated Negative Declaration (MND) for, construction of a Dollar General Store in the “quaint” downtown area of unincorporated Georgetown, a Gold Rush-era “hamlet” designated as a State Historical Landmark. Georgetown Preservation Society v. County of El Dorado (Simoncre Abbie, LLC, Real Party in Interest) (2018) 30 Cal.App.5th 358. The Court held lay public commentary on nontechnical issues concerning the project’s size and general appearance constituted substantial evidence supporting a fair argument that the project may have significant aesthetic impacts, and thus required an EIR, notwithstanding County’s findings that the project complied with its Historic Design Guide. The Court also held County’s failure to make explicit findings in the record on alleged credibility and foundation issues precluded its “manufacturing after-the-fact findings” to justify its dismissal of the public comments on the ground that they did not constitute “substantial evidence.”
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Fourth District Holds Addendum Process Authorized By CEQA, No New Findings Required
The Fourth District Court of Appeal (Div. 1) held in a published opinion filed October 24, 2018, that CEQA Guidelines § 15164 validly establishes an addendum process that is consistent with the CEQA statute, implementing and filling gaps in Public Resources Code § 21166. The Court also held that new findings under Public Resources Code § 21081 addressing a project’s significant impacts are not required when a lead agency approves an addendum to an EIR. Save Our Heritage Organisation v. City of San Diego (The Plaza de Panama Committee, Real Party in Interest) (2018) 28 Cal.App.5th 656.
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Fourth District Holds City Violated CEQA By Refusing To Recognize Exemption For Single Family Residence Project And Attempting To Subject Owner’s Already Authorized And Completed Demolition Action To Retroactive Environmental Review (Yet Absolves City From Liability For Regulatory Taking)
By Arthur F. Coon on
In a published opinion filed September 18, 2018, the Fourth District Court of Appeal (Div. 1) affirmed a judgment granting a writ setting aside the City of San Diego’s (City) decision to subject a coastal development permit (CDP) application for construction of a single family home on a vacant La Jolla lot to CEQA review. Francis A. Bottini, Jr. v. City of San Diego (2018) 27 Cal.App.5th 281.
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More Mild Than Wild: Legislature Tinkers With Modestly Reforming Scope Of CEQA Analysis In Two New Laws
On September 7, 2018, Governor Brown signed two bills amending CEQA in relatively minor ways that will become effective January 1, 2019.
AB 2341 (Chapter 298) (Mathis) adds Public Resources Code § 21081.3 to provide that “a lead agency is not required to evaluate the aesthetic effects of a project and aesthetic effects shall not be considered significant effects on the environment if the project involves the refurbishment, conversion, repurposing, or replacement of an existing building that meets … [five specified] requirements[.]” To fall within this new partial statutory exemption, (1) the building must be abandoned, dilapidated (defined as “decayed, deteriorated, or fallen into such disrepair through neglect or misuse so as to require substantial repair for safe and proper use”), or have been vacant for over a year; (2) the site must be immediately adjacent to parcels developed with qualified urban uses or 75 percent of its perimeter must adjoin such parcels (with the remainder adjoining parcels previously so developed); (3) the project must include housing construction; (4) any new structure must “not substantially exceed the height of the existing structure”; and (5) the project must “not create a new source of substantial light or glare.”
Context Matters: First District Holds CEQA Requires EIR, Not MND, To Analyze Mixed-Use Project’s Potentially Significant Aesthetic And Traffic Impacts On Fremont’s Niles Historical District
In an opinion filed July 16, and belatedly ordered published on August 9, 2018, the First District Court of Appeal (Division 5) affirmed the trial court’s judgment setting aside the City of Fremont’s approvals of a mixed residential/retail project (“Project”) and related Mitigated Negative Declaration (“MND”), and ordering preparation of an EIR based on the Project’s potentially significant aesthetic and traffic impacts on the Niles historical district. Protect Niles v. City of Fremont (Doug Rich, et al., Real Parties in Interest) (2018) 25 Cal.App.5th 1129. The opinion is a good reminder of the legal vulnerability of any species of negative declaration under CEQA’s applicable “fair argument” standard of review. It also provides guidance in the areas of mootness; analysis of aesthetic, historical resources, traffic level of service (“LOS”), and traffic safety impacts; the operation of traffic thresholds of significance; and the nature of substantial evidence sufficient to support a “fair argument,” both generally and in the unique “historical district” context presented by this particular case.
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Fourth District Rejects CEQA Challenge to MND for Small Rural High School Project Based on Challenger’s Failure to Exhaust Available Administrative Appeal and on Merits
In a lengthy opinion filed December 20, 2017, and belatedly ordered published on January 8, 2018, the Fourth District Court of Appeal, Division 1, affirmed the trial court’s judgment denying a writ petition asserting CEQA and land use law challenges to the City of San Diego’s (“City”) approval of a small high school on previously developed, open-space designated lands adjacent to a commercial equestrian facility. Clews Land and Livestock, LLC v. City of San Diego (Jan Dunning, et al, Real Parties In Interest) (2017) 19 Cal.App.5th 161. The opinion underscores the critical importance of correctly interpreting and scrupulously following a local lead agency’s administrative appeal procedures in order to exhaust administrative remedies and preserve CEQA claims for judicial review. (The non-CEQA, land use law aspects of the opinion will not be analyzed here but will be covered in a subsequent blog post by my partner, Bryan Wenter.)