As the world continues to dig out from the aftermath of the Covid 19 pandemic, the aftereffects of the earliest phase of lockdowns continue to be felt, including in the world of CEQA litigation.  While this blog does not ordinarily focus on unpublished appellate decisions, the recent case of Committee for Sound Water and Land Development v. City of Seaside, H049031 (6th Dist., May 9, 2022) is worth a look given its analysis of CEQA’s statute of limitations and its extension by emergency actions of the Judicial Council, as well as its handling of the tricky scenario of what happens when an approving agency is dissolved by operation of law.

Continue Reading Sixth District Upholds Constitutionality of Judicial Council’s Covid Emergency Rules Altering CEQA’s Statutes of Limitations In Unpublished Opinion

On April 20, 2022, the Bay Area Air Quality Management District (“BAAQMD”) adopted updated CEQA thresholds of significance that it recommends for public agencies’ use in evaluating the impacts of land use projects and plans on climate change.  The thresholds and substantial evidence supporting them are contained in a “Justification Report” that can be reviewed on BAAQMD’s website here.

Continue Reading BAAQMD Adopts “Fair Share” Based CEQA Thresholds of Significance For Evaluating Climate Change Impacts of Land Use Projects And Plans

In a published decision filed March 30, 2022, the First District Court of Appeal (Division 5) reversed a trial court judgment upholding the reissued final environmental impact report (“RFEIR”) for a 44-single family residence project on a unique, species- and habitat- rich 32-acre site in the City of Livermore’s Garaventa Hills area.  Save the Hill Group v. City of Livermore (Lafferty Communities, Inc., Real Party in Interest) (2022) ___ Cal.App.5th ___.  Both the trial court and Court of Appeal agreed that the RFEIR’s analysis of the “no project” alternative was substantively inadequate, because it lacked information about the feasibility of purchase and preservation options that was necessary for the City Council to make an informed, reasoned decision, but the Court of Appeal disagreed with the trial court’s conclusion that Petitioner/Appellant Save the Hill’s failure to exhaust on this issue barred judicial consideration of it.  The Court of Appeal rejected Appellant’s remaining arguments that the RFEIR’s analysis and mitigation of the project’s vernal pool fairy shrimp (“VPFS”) and wetlands impacts were inadequate, and that its identified compensatory mitigation for permanent sensitive habitat loss was inadequate.  (In a brief concluding portion of the opinion that won’t be further discussed here, the Court also held Appellant had forfeited and lacked standing to raise the issue of City’s alleged mitigation obligations under two prior settlement agreements to which Appellant was not a party.)

Continue Reading First District Holds EIR’s Analysis of “No Project” Alternative To City of Livermore Residential Development Violated CEQA By Failing To Discuss Feasibility Of Purchasing And Preserving Habitat-Rich Garaventa Hills Project Site, Also Addresses Significant Issues Involving Exhaustion Doctrine And Adequacy of Mitigation

In an opinion filed on December 16, 2021, and belatedly ordered published on January 13, 2022, the Fourth District Court of Appeal rejected a CEQA challenge to a small multifamily project in the City of Santa Cruz.  Ocean Street Extension Neighborhood Assn. v. City of Santa Cruz (2021) 73 Cal.App.5th 985 (“OSENA”).  The case contains valuable guidance regarding mitigation for biological resources impacts, lays out some common sense principles that may help condense the EIR preparation process, and also provides useful guidance to developers and agencies dealing with water supply issues during the current drought.

Continue Reading Fourth District Rejects CEQA And Municipal Code Challenges To City Of Santa Cruz’s Project Approvals And EIR For Small Multifamily Housing Project

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) ___ Cal.App.5th ___.  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

In a sprawling, 123-page published opinion filed on February 14, 2022, the Third District Court of Appeal affirmed in part, and reversed in part, judgments in consolidated CEQA actions challenging Placer County’s EIR for its approval of a specific plan and rezoning to permit residential and commercial development and preserve forest land in the Martis Valley near Truckee and Lake Tahoe.  League to Save Lake Tahoe, Mountain Area Preservation, et al./California Clean Energy Committee v. County of Placer, et al. (Sierra Pacific Industries, et al., Real Parties in Interest) (2022) ___ Cal.App.5th __________.  Consistent with its impressive length, the opinion decides a number of significant issues, and contains a thorough exposition of established CEQA rules and principles, including, but not limited to, those governing:  applicable standards of review; baseline/environmental setting description; lead agency discretion regarding thresholds of significance, methodology for impact study, and significance determinations; cumulative impacts (including GHG) analysis; and requirements for adequate mitigation measures.

Continue Reading Third District Addresses Significant CEQA Issues In Mixed Decision On Placer County’s EIR For Specific Plan/Rezoning Allowing Development of Martis Valley Timberlands

In a lengthy, but mostly unpublished, opinion filed December 16, 2021, the Fourth District Court of Appeal affirmed the trial court’s judgment rejecting a petitioner group’s CEQA, Planning and Zoning Law, and procedural due process/fair hearing challenges to the City of San Diego’s approval of a four-lane road connecting existing developments.  Save Civita Because Sudberry Won’t v. City of San Diego (2021) 72 Cal.App.5th 957.  In the opinion’s published portions, the Court held that (1) the City did not violate CEQA Guidelines § 15088.5(g) in failing to summarize revisions made to a recirculated draft EIR, and (2) petitioner’s procedural due process claim was foreclosed because the City Council acted in a quasi-legislative capacity in certifying the FEIR and approving the road project.  (In the opinion’s unpublished portions, which won’t be discussed in detail here, the Court also upheld the trial court’s rejection of Petitioner’s claims that the FEIR:  failed to analyze a project alternative of removing the road from a community plan; failed to adequately analyze traffic impacts and hazards; failed to disclose the VMT calculation’s margin of error; and failed to discuss impacts on General Plan consistency and pedestrian-friendly communities.)

Continue Reading Fourth District Rejects CEQA Challenges To San Diego’s FEIR And General/Specific Plan Amendments For Connector Road Construction Project; Holds Procedural Due Process Protections Did Not Apply Because Underlying Approvals Were Quasi-Legislative, Not Quasi-Adjudicatory

In an opinion filed November 15, and later ordered published on December 14, 2021, the Sixth District Court of Appeal reaffirmed the basic CEQA principle that required environmental review and analysis must precede project approval, and it applied that principle to invalidate the California Coastal Commission’s (Commission) approval of a Coastal Development Permit (CDP) for a residential subdivision project in Monterey County. Friends, Artists and Neighbors of Elkhorn Slough v. California Coastal Commission (Heritage/Western Communities, Ltd., et al., Real Parties in Interest) (2021) 72 Cal.App.5th 666. While the dispositive rule is a simple one, the case’s more complex facts and procedural history make it interesting – and somewhat disturbing – on a number of levels.

Continue Reading Sixth District Holds Coastal Commission’s Post-Approval Analysis of Coastal Development Permit’s Environmental Impacts Violates CEQA

In a partially published opinion filed on November 3, 2021, involving the CEQA review for a bed and breakfast/commercial event project proposed on property within a Yolo County agricultural zone, the Third District Court of Appeal (in a unanimous opinion authored by Justice Robie) reaffirmed the basic CEQA principle that a “full EIR” must be prepared whenever a project may have any significant environmental effect; it thus reversed the trial court’s judgment that had allowed a deficient revised Mitigated Negative Declaration (MND) and its mitigation measures to remain intact while ordering Yolo County to also prepare an EIR limited to addressing only the project’s impacts on three species of concern (tricolored blackbird, valley elderberry longhorn beetle, and golden eagle).  The Court of Appeal reversed and remanded with instructions to issue a peremptory writ directing the County to set aside its MND approval and to prepare a full EIR instead.  Farmland Protection Alliance v. County of Yolo (2021) 71 Cal.App.5th 300.  (In the unpublished portion of its opinion, which won’t be further discussed in this post, the Court of Appeal held the trial court was correct in finding that substantial evidence supported a fair argument that the project may have a significant impact on the beetle, thus requiring an EIR, and also concluded the trial court did not err in upholding the County’s determinations that the project was consistent with the Williamson Act and County’s zoning code.)

Continue Reading Third District Holds CEQA Does Not Authorize “Remedy” of “Limited EIR” To Augment Deficient MND; Rather, Full EIR Must Be Prepared Where Substantial Evidence Supports Fair Argument That Any Aspect Of Project May Have Significant Environmental Effect

In an opinion filed September 28, and certified for publication on October 26, 2021, the Fourth District Court of Appeal (Div. 3) affirmed a judgment denying a writ petition challenging the City of Tustin’s finding that a Costco gas station/ancillary facilities project in an existing shopping center was categorically exempt from CEQA.  Protect Tustin Ranch v. City of Tustin (Costco Wholesale Corporation, Real Party in Interest) (2021) 70 Cal.App.5th 951.  As did the trial court, the Court of Appeal rejected Petitioner/Appellant’s arguments that the project exceeded the 5-acre size limit of the Class 32 infill exemption (CEQA Guidelines, § 15332) and that the “unusual circumstances” exception precluded the City’s use of the exemption.

Continue Reading Fourth District Affirms Judgment Upholding CEQA Class 32 Infill Exemption For Costco Gas Station/Parking Lot Project Within Existing Shopping Center