In a published opinion filed June 30, 2021, the First District Court of Appeal applied well-established CEQA statute of limitations rules, and a “persuasive dictum” from one of its prior decisions addressing the requirements for valid tolling agreements, to affirm a judgment dismissing a CEQA claim as time-barred.  The Court also upheld the dismissal for failure to state any viable cause of action as to all of plaintiffs’ other claims challenging respondent East Bay Regional Park District’s (“EBRPD” or the “Park District”) approval of a Memorandum of Understanding (“MOU”) with Pacific Gas and Electric Company (“PG&E”); the MOU set forth contractual terms of PG&E’s tree removal for safety purposes within its natural gas pipeline easements on EBRPD lands.  Save Lafayette Trees, et. al v. East Bay Regional Park District (Pacific Gas and Electric Company, Real Party in Interest) (1st Dist., Div. 3, 2021) ___ Cal.App.5th ___.  (In keeping with this blog’s practice, this post’s analysis will focus on the CEQA issues; it will not cover in detail the case’s significant non-CEQA holdings, which disposed of plaintiffs’ claims against EBRPD for alleged (1) violation of the City of Lafayette’s local Tree Protection Ordinance (on state law preemption grounds); (2) violation of EBRPD’s own Ordinance No. 38; and (3) due process, all as a matter of law.  For purposes of full disclosure, I represented real party PG&E in this litigation.)

Continue Reading First District Addresses CEQA Statute of Limitations And Tolling Agreement Rules In Affirming Judgment Upholding EBRPD’s Approval of Tree Removal MOU With PG&E

In an 85-page opinion filed March 25, and modified and certified for partial publication on April 23, 2021, the First District Court of Appeal affirmed the Napa County Superior Court’s judgment denying a writ petition challenging the County’s EIR and approvals for an expansion of Syar Industries, Inc.’s (Syar) aggregate mining operations at a quarry that has existed since the 1800s.  Stop Syar Expansion v. County of Napa (1st Dist. 2021) ____ Cal.App.5th ____.  The Court belatedly published about 25 pages of its lengthy opinion, which portions addressed basic CEQA principles, including standard of review and exhaustion principles, and the interplay of CEQA and general plan consistency issues.

Continue Reading First District Affirms Judgment Rejecting CEQA and General Plan Consistency Challenges to Napa County’s EIR for Syar Quarry Expansion Project, Addresses Significant Exhaustion and Land Use Issues

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

On November 9, 2020, the United States Court of Appeals for the Ninth Circuit issued a published opinion affirming a judgment on the pleadings, granted by Northern District Presiding Judge William Alsup, in a removed action filed by a group of taxicab drivers and companies against the City of San Francisco.  San Francisco Taxi Coalition, et al. v. City and County of San Francisco, et al. (9th Cir. 2020) ___ F.3d ___.  The action challenged the San Francisco Municipal Transit Agency’s (SFMTA) adoption of 2018 taxi regulations which favored recent, post-2010 owners of taxi permits (called “medallions,” and for which the recent owners paid $250,000 each) over longer-term permit owners by giving them priority for lucrative airport pickup rides.

Continue Reading A “Fare” Shake? Ninth Circuit Affirms Judgment On the Pleadings for San Francisco In Removed Action Challenging SFMTA’s 2018 Taxi Regulations, Remands for Consideration of Whether to Grant Plaintiffs Leave to Amend CEQA Claim

In an opinion originally filed on August 26, and later certified for publication on September 16, 2020, the Third District Court of Appeal dismissed a plaintiff group’s (“Parkford”) appeal from an adverse judgment in a CEQA/land use case as moot.  Parkford Owners for a Better Community v. County of Placer (Silversword Properties, LLC, et al., Real Parties in Interest) (2020) 54 Cal.App.5th 714.

Continue Reading Third District Dismisses Appeal In CEQA Case As Moot Where Plaintiff Failed To Timely Seek Or Obtain Preliminary Injunction And Project Construction Was Completed Before Trial

In a published opinion filed on August 17, 2020, the Third District Court of Appeal mostly affirmed the trial court’s judgment upholding Placer County’s partial abandonment of public easement rights in an emergency access/public transit road connecting two Lake Tahoe-area residential subdivisions; the County took the action to resolve disputes that had arisen after one subdivision’s residents began using the road as an all-purpose public road and short-cut through the other subdivision to get to Northstar-at-Tahoe.  Martis Camp Community Association v. County of Placer, et al. (Retreat at Northstar Association, et al., Real Parties in Interest) (2020) _____ Cal.App.5th _____________.  My partner Bryan Wenter’s post covers the land use issues at the heart of the case, and can be found here; readers should consult that post for the case’s factual background and primary holdings.  This post covers the CEQA issue at the “tail end” of the opinion, which involved application of CEQA’s “subsequent review” rules to County’s partial road abandonment project.

Continue Reading Hitting A CEQA Snag: Third District Affirms Rejection of Statutory Road Abandonment And Brown Act Challenges And Inverse Condemnation Claim, But Holds Placer County Violated CEQA By Adopting Addendum To Wrong Project’s EIR

On August 27, 2020, the California Supreme Court filed its unanimous opinion, authored by Justice Corrigan, in Protecting Our Water and Environmental Resources v. County of Stanislaus (2020) 10 Cal.5th 479 (“POWER”).  The POWER decision is a “mixed bag” for the parties to the litigation themselves:  the Court rejected both (a) the County’s position that all its well permits are ministerial approvals exempt from CEQA, and (b) the environmental plaintiffs’ converse position that all such permits are discretionary approvals subject to CEQA.  For non-parties, the case’s significance lies in its elucidation of the legal rules and principles governing the key distinction between discretionary and ministerial projects – a fundamental distinction that determines CEQA’s threshold applicability to agency approvals and actions.  In following appellate precedent focusing not on permitting ordinances and regulations as a whole and in the abstract, but more granularly on the specific regulatory controls applicable to a particular permit application, the high Court in POWER eschews the “all or nothing” approach urged by the parties and endorses a more nuanced and contextual analysis that is both reasonable and fully consonant with CEQA and its objectives.

Continue Reading Supreme Court Holds Stanislaus County Well Permit Decisions Under State Standards Are Neither Categorically Ministerial Nor Categorically Discretionary In Nature; Rather, Whether CEQA-Triggering Discretion Exists Must Be Determined On Case-By-Case Basis

In a mammoth 132-page published opinion (with an additional five pages of appendices) filed on June 12, 2020, the Fourth District Court of Appeal (Division One) mostly affirmed the trial court’s judgment invalidating San Diego County’s approvals of a 2018 Climate Action Plan (CAP), related Guidelines for Determining Significance, and related Supplemental EIR (SEIR).  The opinion – which marked “the third time the County’s attempt to adopt a viable climate action plan and related CEQA documents” had been before the Court – resolved consolidated appeals in three cases, in which the lead plaintiffs were Golden Door Properties, LLC and the Sierra Club.  (Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467.)  While the Court of Appeal reversed the trial court’s findings that the CAP was inconsistent with the County’s General Plan (applying the familiar highly deferential standard of review to the County’s consistency determination), that several of the County’s responses to SEIR comments were inadequate, and that the SEIR’s geographical scope of study for cumulative impacts was inconsistent, it otherwise affirmed the trial court’s findings of significant CEQA violations affecting the CAP and SEIR.

Continue Reading Third Time Is Not The Charm: Fourth District Affirms Judgment Setting Aside San Diego County’s Climate Action Plan And Related Supplemental EIR Approvals Due To CEQA Violations

On May 29, 2020, the California Judicial Council adopted amendments to its controversial Emergency Rule 9 to provide fixed dates for the tolling of civil statutes of limitations, thereby replacing the indeterminate tolling previously provided for by the rule.  While the amended Emergency Rule 9 provides welcome certainty, many believe it goes too far in extending CEQA and other short statutes of limitations in the land use litigation context – most of which are short by legislative design, and range from 30 to 90 days – by a period of 119 days (from April 6 through August 3, 2020).

Continue Reading Update on COVID Pandemic’s Impact on CEQA/Land Use Litigation Statutes of Limitations: California Judicial Council Modifies Emergency Rule 9 To Provide “Hard Stop” Date of August 3, 2020 for Tolling