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) ____ Cal.App.5th ____.  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.

Continue Reading 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 June 28, and later ordered published on July 27, 2018, the Second District Court of Appeal (Div. 6) affirmed the trial court’s judgment dismissing on demurrer a writ petition seeking to compel the County of San Luis Obispo to comply with CEQA in issuing well construction permits to four agricultural enterprises, mostly for vineyard irrigation.  The Court held County’s governing local ordinance, which addresses only water quality issues and incorporates fixed technical standards for well construction from relevant Department of Water Resources (DWR) Bulletins, established a ministerial scheme for issuing such permits and does not confer “discretion to shape a well permit to mitigate environmental damage arising from groundwater overuse.”  California Water Impact Network v. County of San Luis Obispo (Justin Vineyards and Winery, LLC et al., Real Parties in Interest) (2018) ____ Cal.App.5th _____.

Continue Reading Second District Holds CEQA Does Not Apply to San Luis Obispo County’s Issuance of Well Construction Permits Under Its Ministerial Governing Ordinance

In a published decision filed June 12, 2018, the Second District Court of Appeal (Div. 6) held that the same broad definition of a “project” that mandates more extensive CEQA review of activities undertaken or approved by public agencies also applies in determining the scope of statutory exemptions that serve to exempt certain projects from CEQA review.  County of Ventura v. City of Moorpark, Broad Beach Geologic Hazard Abatement District (2018) ___ Cal.App.5th ___.  The Court of Appeal affirmed the trial court’s judgment to the extent it rejected Ventura County’s CEQA, preemption, and extraterritorial regulation challenges to a settlement agreement between the City of Moorpark and the Broad Beach Geologic Hazard Abatement District (BBGHAD), a state law entity created to carry out a Malibu beach restoration project.  But it reversed with directions to declare void (as unlawful abdications of BBGHAD’s police power) certain of the settlement agreement’s provisions which severely limited BBGHAD’s authority to modify project haul routes in the event of changed circumstances.

Continue Reading “Sauce For The Gander”: Second District Holds CEQA’s Broad Definition Of “Project” Also Applies In Determining Scope of Activity To Which Statutory Exemption Applies

A development project’s potential noise impacts can implicate complex and technical issues under CEQA, particularly where those impacts are asserted, in litigation by project opponents challenging a negative declaration, as the sole basis an EIR should have been required.  Such was certainly the case in Charles T. Jensen v. City of Santa Rosa (Social Advocates For Youth, Real Party in Interest) (1st Dist. 2018) 23 Cal.App.5th 877, a dense 24-page opinion filed by the Court of Appeal for the First Appellate District (Division 4) on May 1, and later ordered certified for publication on May 24, 2018.

Continue Reading Filtering The CEQA Noise: First District Upholds Santa Rosa’s Negative Declaration For “Dream Center” Youth Housing Project, Holds Non-Expert Predictions Of Significant Noise Impacts Failed To Raise “Fair Argument” Supported By Substantial Evidence

SB 743 was enacted in 2013 to further California’s efforts to reduce GHG emissions by encouraging transit-oriented, infill development – a strategy announced in SB 375, the “Sustainable Communities and Climate Protection Act of 2008.”  As part of SB 743, the Legislature enacted Public Resources Code § 21099(d)(1), which provides:  “Aesthetic and parking impacts of a residential, mixed-use residential, or employment center project on an infill site within a transit priority area shall not be considered significant impacts on the environment.”  In an opinion filed February 28, and subsequently certified for publication on March 22, 2018, the Second District Court of Appeal (Division 7) applied § 21099(d)(1) and held that it exempted from CEQA review alleged parking impacts of a 68-acre, mixed-use, infill project, located a quarter-mile from the Covina Metrolink commuter rail station, which the City approved via Mitigated Negative Declaration (MND) three months after the statute’s effective date.  Covina Residents for Responsible Development v. City of Covina (City Ventures, Inc., et al., Real Parties in Interest) (2018) 21 Cal.App.5th 712.  In addition to rejecting plaintiff/appellant CRRD’s CEQA challenges to the project, the Court of Appeal rejected its Subdivision Map Act (SMA) arguments and affirmed the trial court’s judgment denying its writ petition.

Continue Reading Redrawing CEQA’s “Parking” Lines? Second District Holds Parking Impacts of Covina Mixed-Use, Transit-Oriented Infill Project Are Statutorily Exempt From CEQA Review, Rejects Related Map Act Challenge

In a published opinion filed March 15, 2018, the Fourth District Court of Appeal (Division One) affirmed the trial court’s judgment denying a writ petition and complaint challenging the City of San Diego’s approvals of a wireless telecommunications facility to be constructed by real party Verizon Wireless in Ridgewood Neighborhood Park, a dedicated park.  Don’t Cell Our Parks v. City of San Diego (Verizon Wireless, Real Party in Interest) (2018) 21 Cal.App.5th 338.

Continue Reading Fourth District Upholds San Diego’s CEQA Class 3 Categorical Exemption Determination For Verizon’s Faux Tree Wireless Telecommunications Facility In Dedicated Public Park, Rejects City Charter Inconsistency Arguments

In an opinion filed on January 4, and later certified for partial publication on January 30, 2018, the Fifth District Court of Appeal affirmed a trial court judgment rejecting appellant’s claim that the EIR for the City of Visalia’s general plan update improperly omitted an analysis of the plan’s potential urban decay effects.  Visalia Retail, L.P. v. City of Visalia (5th Dist. 2018) 20 Cal.App.5th 1.  A new land use policy included in the update for areas designated “Neighborhood Commercial” provided that no shopping center tenant in such areas could be larger than 40,000 square feet.  Appellant, a property owner affected by the policy, objected to the City and submitted the opinion of an experienced local commercial real estate broker that the policy would cause anchor tenant vacancies and/or lower-traffic anchors that would reduce landlords’ rental income used for maintenance and improvements, and would have other economic effects resulting in a “downward spiral of physical deterioration” and “physical blight and ‘urban decay’ deterioration[.]”

Continue Reading CEQA Does Not Require City’s General Plan Update EIR to Address Urban Decay Based on Broker’s Speculative Opinion Concerning Effects of Commercial Tenant Square Footage Cap

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

As another year draws near its close, a number of notable recent CEQA developments in both the legislative and regulatory arenas have occurred that bear mention.  Below are some highlights of new CEQA legislation that will be in effect in the new year, as well as significant regulatory changes in process.

Continue Reading Year-End CEQA Legislative And Regulatory Roundup – December 2017

When it comes to CEQA cases, some courts don’t seem to know when to stop beating a dead horse.  So it may be with the Fourth District Court of Appeal’s 43-page, published, 2-1 majority decision, accompanied by a 4-page dissent, filed on November 16, 2017, after remand from the California Supreme Court in Cleveland National Forest Foundation, et al. v. San Diego Association of Governments, et al. (4th Dist., Div. 1, 2017) 17 Cal.App.5th 413.  My previous blog post on the Supreme Court’s disappointingly narrow opinion, which decided only the issue whether SANDAG’s 2011 EIR for its Regional Transportation Plan/Sustainable Community Strategy (RTP/SCS) violated CEQA by not explicitly engaging in an analysis of consistency of projected 2050 GHG emissions with a 2005 executive order (holding it didn’t), can be found here.

The Court of Appeal’s previous published decision, of course, reached that narrow GHG analysis issue and a lot more – it held SANDAG’s EIR was deficient in literally all respects argued by plaintiffs and intervenor/appellant the People, i.e., failure to analyze consistency with the 2005 Executive Order; failure to adequately address GHG mitigation; failure to analyze a reasonable range of project alternatives; failure to adequately analyze and mitigate air quality and particulate matter pollution impacts; and understating agricultural land impacts.  In supplemental briefing following the Supreme Court’s remand, Cleveland and the People requested the Court to issue a revised published opinion essentially the same as Cleveland I, albeit slightly revised to acknowledge the Supreme Court’s partial reversal.

Continue Reading SANDAG RTP/SCS EIR Redux: Is Fourth District’s Published Opinion on Remand Constructive CEQA Compliance Lesson or Moot Exercise?