Historic and Cultural Resources

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In a published opinion filed December 6, 2022, the Third District Court of Appeal reversed in part and affirmed in part the trial court’s judgment denying writ petitions in consolidated actions challenging the EIR for a major state government project affecting the Historic State Capitol Building and Annex in Sacramento.  Save Our Capitol! v. Department of General Services (Joint Committee On Rules of the California State Senate and Assembly, Real Party in Interest)/Save the Capitol, Save the Trees v. Department of General Services, et al. (2022) 85 Cal.App.5th 1101.  In the project’s final iteration, Defendant/Respondent Department of General Services and Real Party/Respondent Joint Committee, etc. (collectively, “DGS”) proposed to demolish the Historic Capitol’s 325,000 square-foot Annex, replace it with a larger 525,000 square-foot Annex building, construct a 40,000 square-foot underground visitor center attached to the Historic Capitol’s west side, and construct a 150-space underground parking garage east of the new Annex.  While rejecting many of plaintiffs’ CEQA challenges to the project’s final EIR (FEIR), the Court of Appeal found merit in claims that the EIR’s project description, analyses of impacts to historical resources and aesthetics, and alternatives analysis were deficient.  Accordingly, it directed issuance of a writ vacating the EIR certification and project approval and directing DGS to revise and recirculate the EIR’s deficient sections before again considering project approval. Continue Reading A “Capitol” Offense: Third District Holds State Capitol Building Annex/Visitor Center Project EIR Violated CEQA Due To Inadequate Project Description And Analyses Of Historical Cultural Impacts, Aesthetics, And Project Alternatives

In an opinion filed January 28, and later certified for publication on February 16, 2022, the Third District Court of Appeal affirmed a judgment denying a petition for writ of mandate that challenged on CEQA grounds the El Dorado Irrigation District’s (“EID”) decision to undertake its Upper Main Ditch piping project.  Save the El Dorado Canal v. El Dorado Irrigation District, et al. (2022) 75 Cal.App.5th 239. The challenged water conveyance project would replace about three miles of EID’s open and unlined earthen ditch system with a buried water transmission pipeline in order to conserve water and improve water quality.  Petitioner alleged the EIR’s project description was inadequate because it omitted the material fact that the ditch section to be abandoned as a water conveyance also served as the watershed’s only drainage system, and that the EIR insufficiently analyzed the abandonment’s impacts on hydrology, biological resources, and wildfires.
Continue Reading Third District Rejects CEQA Challenges To El Dorado Irrigation District Ditch Piping Project, Holds EIR’s Project Description And Analysis Of Potential Hydrology, Biological Resources, and Wildfire Impacts Were Adequate

Pursuant to Governor Newsom’s June 11, 2021 Executive Order N-08-21, the conditional suspension of certain public agency requirements related to the filing and posting of CEQA notices (i.e., NOEs, NODs, and notices of intent and availability) will end on September 30, 2021.  The COVID-related suspension had previously been ordered in April 2020 by Executive Order N-54-20; it was later indefinitely extended by Executive Order N-80-20, as discussed in a prior October 12, 2020 post by Arielle Harris and me that can be accessed here.  The Governor’s new EO means that, as of September 30, the conditionally authorized alternative procedures for publicizing the relevant CEQA documents will no longer be authorized or available to public agencies, and the normal filing, noticing and posting requirements will resume and again apply with full force.
Continue Reading COVID-Related Conditional Suspension of CEQA Public Filing, Posting, Notice, and Other Requirements To Sunset On September 30, 2021 Under New Executive Order

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

As we rapidly approach the end of a year of COVID-related challenges and uncertainties, CEQA practitioners may want to review the year’s key legislation impacting CEQA and its application, which was contained in the handful of bills summarized below.

  • AB 168 (Aguilar-Curry). This urgency legislation became effective with the Governor’s signature on September 25, 2020.  It amends Government Code §§ 65400, 65913.4 and 65941.1 to correct an “oversight” in SB 35 (Weiner), namely, that 2017 law’s failure to consider potential destruction of tribal cultural resources as a result of the streamlined, ministerial (and thus CEQA-exempt) approval process it authorized for multifamily housing development projects satisfying specified objective planning standards.  (SB 35 is summarized in detail in my 12/7/17 blog post, which can be found here.)

Continue Reading 2020 CEQA Legislative Developments

In a published opinion filed May 18, 2020, the Sixth District Court of Appeal affirmed the trial court’s denial of a historic preservation group’s writ petition that challenged the City of San Jose’s (City) entry into a Streambed Alteration Agreement (SAA) with the California Department of Fish and Wildlife (CDFW), which agreement was needed to implement the City’s pedestrian bridge project involving demolition of the historic Willow Glen Railroad Trestle.  Willow Glen Trestle Conservancy v. City of San Jose (6th Dist. 2020) 49 Cal.App.5th 127.
Continue Reading Sixth District Holds City Of San Jose’s Action In Seeking And Accepting Streambed Alteration Agreement From California Department Of Fish And Wildlife Is Not New Discretionary Approval For City’s Historic Trestle Demolition/Bridge Construction Project, And Thus Does Not Trigger Subsequent CEQA Review

In a 74-page opinion filed February 24, and later ordered published on March 17, 2020, the Second District Court of Appeal (Division 7) affirmed judgments (granting the writ petition and awarding fees) in coordinated appeals stemming from a CEQA action successfully challenging the City of Agoura Hills’ (City) project approvals and mitigated negative declaration (MND) for a mixed use development project on an undeveloped 8.2 acre parcel.  Save the Agoura Cornell Knoll v. City of Agoura Hills (Doron Gelfand, et al., Real Parties in Interest) (2020) 46 Cal.App.5th 665.  The Court rejected the City’s and Real Parties’ procedural arguments that Petitioners and Respondents Save the Agoura Cornell Knoll (STACK) and California Native Plant Society (CNPS) had failed to exhaust administrative remedies, and that their claims were barred by lack of standing and the statute of limitations; on the merits of the CEQA claim, it held that substantial evidence in the record supported a fair argument that even as mitigated the project may have significant impacts on cultural resources (i.e., a Chumash Native American archaeological site), three sensitive plant species, native oak trees, and aesthetic resources, and that an EIR was therefore required; and it further held the trial court properly granted writ relief based on the City’s violation of its own Oak Tree Ordinance by approving a project that would concededly remove 35 to 36 percent of the site’s oak tree canopy when the Ordinance prohibited removal of more than 10 percent.  Finally, the Court held that the trial court properly awarded Petitioners STACK and CNPS $142,148 in attorneys’ fees under Code of Civil Procedure § 1021.5, made payable 50% by City and 50% by Real Parties, notwithstanding that Petitioners furnished their first amended petition to the Attorney General (AG) beyond the 10-day statutory period for doing so.
Continue Reading Second District Affirms Judgment Invalidating City of Agoura Hills’ Mixed-Use Project Approvals and Related MND Based On CEQA and Local Oak Tree Ordinance Violations

In a short published opinion filed September 13, 2019, the First District Court of Appeal (Div. 4) affirmed the trial court’s judgment denying a historic preservation group’s mandate petition seeking to compel preparation of an EIR by the California Department of Corrections and Rehabilitation (CDCR or department).  Plaintiff The Lake Norconian Club Foundation (foundation) argued CDCR was required to analyze its decision not to repair and maintain the Lake Norconian Club, an unoccupied and severely deteriorated former luxury resort hotel that sits on CDCR’s property adjacent to a medium-security prison.  The hotel, which once catered to Hollywood stars and sports celebrities, was opened in 1929, closed in 1941, and was thereafter variously used as a military hospital, drug rehabilitation center, and CDCR administrative offices; now vacant, the building is listed on the National Register of Historic Places.  The trial court denied the writ on statute of limitations grounds, but the First District affirmed “on the ground that the department’s inaction is not a project subject to CEQA.”  The Lake Norconian Club Foundation v. Department of Corrections and Rehabilitation (City of Norco, Real Party in Interest) (2019) 39 Cal.App.5th 1044.
Continue Reading CDCR’s Inaction In Failing To Maintain Historic Former Hotel Not A “Project” Subject To CEQA, Holds First District

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.
Continue Reading Coastal Act Trumps CEQA: CDP Challenger Must Administratively Appeal Local Entity’s Approval To Coastal Commission Before Bringing Judicial Action

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?
Continue Reading California Supreme Court Grants Review Of Regulatory Taking Issues In San Diego Single Family Residence CEQA Case; Merits Briefs To Be Filed Soon