Historic and Cultural Resources

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.)

Continue Reading 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 an opinion filed on November 30, and belatedly ordered published on December 22, 2017, the Second District Court of Appeal, Division 1, affirmed the trial court’s judgment denying all CEQA challenges asserted by plaintiff/appellant Los Angeles Conservancy (“Conservancy”) to the City of West Hollywood’s (“City”) approval of the “Melrose Triangle” project (“project”).  Los Angeles Conservancy v. City of West Hollywood (Charles Company, et al., Real Parties in Interest) (2017) ____ Cal.App.5th _____.

The project proposed office, retail, residential and restaurant uses, and public and private open space and pedestrian paseos, on a 3-acre site at the City’s western “gateway,” and called for demolition of the site’s existing structures, which included an architecturally significant building originally constructed in 1928 and potentially eligible for listing in the California Register of Historical Resources (the “9080 Building”).  By 2012 amendments, the City’s general plan called for the site’s development with an iconic “Gateway” building with exemplary architecture, and significant open space and pedestrian walkthroughs open to the sky.  Developer Charles Company’s proposed Gateway Building would occupy the space currently occupied by the 9080 Building, and other buildings and features on the site were also proposed to implement the general plan’s development vision.

Continue Reading Second District Holds Melrose Triangle Project EIR’s Alternatives Analysis and Responses to Comments Comply with CEQA, Upholds City of West Hollywood’s Findings Rejecting Historic Building Preservation Alternative as Infeasible

In 15-page opinion filed on September 15, and later certified for publication on October 16, 2017, the First District Court of Appeal affirmed the trial court’s judgment denying a writ petition challenging the Judicial Council of California’s (“Judicial Council”) EIR for its project to relocate and consolidate El Dorado County Superior Court operations into a single new building on the outskirts of Placerville.  Placerville Historic Preservation League v. Judicial Council of California (County of El Dorado, et al., Real Parties In Interest) (2017) 16 Cal.App.5th 187.  The Court of Appeal held that substantial evidence supported the EIR’s conclusion that “the possible economic impact of moving judicial activities from the downtown courthouse … was not likely to be severe enough to cause urban decay in downtown Placerville.”  It also held that the Council did not need to adopt mitigation mandating re-use of the courthouse to support this conclusion.

Continue Reading Keeping CEQA In Its Lane: First District Holds Substantial Evidence Supports EIR’s Conclusion That “Urban Decay” Is Not Reasonably Foreseeable Indirect Effect Of Project Relocating Trial Court Operations From Historic Placerville Courthouse

A project that may cause a substantial adverse change in the significance of a “historical resource” may, for that reason, have a significant effect on the environment for purposes of CEQA. (Pub. Resources Code, § 21084.1.) And those familiar with CEQA know that, under its “fair argument” test, where there is any substantial evidence in the record that a project may have a significant effect on the environment, an EIR must be prepared. (§ 21080(d).) But just what is a “historical resource”? How is the determination of its historicity made, by whom, and by applying what standards to the relevant evidence? Those important questions are addressed by the August 12, 2016 published opinion of the Sixth Appellate District Court of Appeal in Friends of the Willow Glen Trestle v. City of San Jose (2016) 2 Cal.App.5th 457.

Continue Reading Sixth District Holds CEQA’s “Fair Argument” Test Inapplicable To City Of San Jose’s Discretionary Determination That 1922 Wooden Railroad Trestle Is Not Historical Resource

In the published part of a partially published opinion filed July 11, 2016, the Second Appellate District Court of Appeal held that Public Resources Code § 21168.9 does not authorize an appellate court to issue and supervise compliance with a writ of mandate on direct appeal, but, rather, such a matter must be remitted to the trial court with appropriate directions. Center for Biological Diversity v. Department of Fish and Wildlife (The Newhall Land and Farming Company, Real Party in Interest) (5th Dist., Div. 5, 2016) 1 Cal.App.5th 452, Case No. B245131.  The Court thus rejected the real party developer’s motion (on remand of the case from the Supreme Court) arguing that CEQA’s “general principle” of expediting litigation and specific language in its remedies statute (Pub. Resources Code, § 21168.9) authorized such action.

Continue Reading CEQA Remedies Statute Does Not Authorize Appellate Court To Issue Writ And Supervise Compliance On Direct Appeal, Holds Second District In Partially Published Decision On Remand In Newhall Ranch Case

In a 5-2 decision filed November 30, 2015, the California Supreme Court reversed the judgment of the Court of Appeal which had upheld the EIS/EIR for the controversial Newhall Ranch development project. Center For Biological Diversity, et al. v. California Department of Fish and Wildlife (The Newhall Land and Farming Company, Real Party in Interest) (2015) 62 Cal.4th 204. The high court approved the EIS/EIR’s methodology analyzing the significance of the project’s greenhouse gas (GHG) emissions in terms of reductions from projected “business as usual” (BAU) emissions consistent with AB 32’s statewide reductions mandate, rather than against some absolute numeric limit above the project site’s “baseline” emissions. However, it held the GHG analysis lacked supporting substantial evidence and a cogent explanation correlating the project-specific reductions to AB 32’s mandated state-wide reductions so as to demonstrate consistency with the latter’s goals under the approved methodology. The Court further held the EIS/EIR violated Fish & Game Code § 5515’s prohibition on the taking of “fully protected” fish species by including mitigation measures providing for the collection and relocation by USFWS of the unarmored threespine stickleback. Finally, the Court held – under the particular factual circumstances of the case – that certain issues raised by plaintiffs during an optional public comment period on the Final EIS/EIR were timely raised so as to sufficiently exhaust administrative remedies under Public Resources Code § 21177(a).

Continue Reading Lost in Translation: Supreme Court Elucidates CEQA GHG Analysis, “Fully Protected” Species Take Prohibition, And Issue Exhaustion In Decision Finding Newhall Ranch Development EIR Flawed

When California local governments stretch their resources too far to regulate private conduct and property rights in the name of environmental protection, CEQA can make it quite onerous to undo what has been done. And one can rest assured that if any additional trees might be allowed to “fall in the forest,” CEQA plaintiffs will be close by with their ears peeled to prevent the tragedy. Such are the fundamental philosophical lessons of the Sixth District Court of Appeal’s recently published opinion in Save Our Big Trees v. City of Santa Cruz (2015) 241 Cal.App.4th 694, filed on October 23, 2015.

Continue Reading If A Tree Falls In The (Urban) Forest … Does CEQA Apply? Sixth District Holds City Of Santa Cruz’s Amendment Of Tree Protection Ordinance Not Categorically Exempt

In a 46-page majority opinion written by Justice Chin and joined by four other justices, punctuated by an 18-page concurring opinion (by Justice Liu, joined by Justice Werdegar) which reads like a dissent, the California Supreme Court reversed the First District Court of Appeal’s judgment in Berkeley Hillside Preservation v. City of Berkeley (Case Nos. S201116, A131254) and remanded for further proceedings.

Continue Reading California Supreme Court Construes CEQA’s “Unusual Circumstances” Exception to Categorical Exemptions in Berkeley Hillside Preservation v. City of Berkeley Decision

The Third District Court of Appeal, in a published opinion filed November 20, 2014, affirmed the trial court’s order denying plaintiffs’ application for a preliminary injunction seeking to halt construction of a massive new entertainment and sports center in downtown Sacramento.  (Adriana Gianturco Saltonstall, et al. v. City of Sacramento (Sacramento Basketball Holdings, LLC, RPI) (3d Dist. 2014) 231 Cal.App.4th 837.)

Continue Reading What CEQA Gives, The Legislature Can Take Away: Third District Holds Special Legislation For Sacramento Kings Downtown Arena Project Is Constitutional, Upholds Trial Court’s Denial Of Preliminary Injunction

A number of recent legislative and regulatory developments in or related to CEQA will impact public agencies, developers, and practitioners in the coming year. Some significant recent developments include:

SB 743 Implementation/New Ways to Measure Transportation Impacts under CEQA. 

As previously discussed in this blog (see OPR Mulls Change in CEQA Traffic Metrics, OPR to Review Specific CEQA Guidelines Topics Proposed for 2014 Update Solicits Public InputCEQA, Sausages, And the Art of The Possible: A Closer Look at SB 743’s General CEQA Reform Provisions), the Governor’s Office of Planning and Research is currently analyzing potential alternatives to the “level of service” metric for analyzing transportation impacts under CEQA, as mandated by SB 743.  OPR has released a “preliminary discussion draft” of a new section 15064.3 of the CEQA Guidelines which sets forth the new metric, along with revisions to Appendix F identifying potential alternatives and mitigation measures.

Continue Reading Fall 2014 CEQA Roundup: Legislative and Regulatory Developments