CEQA’s Class 32 categorical exemption for “infill development” applies to proposed developments within city limits on sites of five or fewer acres substantially surrounded by urban uses, where the site has no habitat value for special status species, can be adequately served by all required utilities and public services, and the project would not have significant traffic, noise, air quality, or water quality impacts. (CEQA Guidelines, § 15332(b)-(e).)  But another important qualification is that the project must be “consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations.” (§ 15332(a).)  A recent Fourth District decision addressed this key requirement of the infill exemption, and upheld application of the Class 32 exemption to the City of San Diego’s approval of a project proposing seven (7) detached residential condominium units on a steeply sloped, environmentally sensitive half-acre site –despite general plan minimum density policies that would ordinarily require 16 to 23 dwelling units on a parcel of that size.  Holden v. City of San Diego (IDEA Enterprises, LP, Real Party in Interest) (2019) 43 Cal.App.5th 404.

Continue Reading Fourth District Upholds CEQA Class 32 Infill Exemption For Small Residential Condo Project On Environmentally Sensitive Lands As Consistent With San Diego’s General Plan Despite Failure To Meet Recommended Minimum Density

In an opinion filed November 26, and ordered published on December 23, 2019, the Third District Court of Appeal partially reversed a judgment rejecting a labor union’s CEQA challenges to the EIS/EIR for a geothermal power plant project on federal land in Mono County.  Russel Covington, et al v. Great Basin Unified Air Pollution Control District, et al. (Orin 50 LLC, et al, Real Parties in Interest) (2019) 43 Cal.App.5th 867.

Continue Reading “ROG Won: A CEQA Wars Story” – Third District Holds Geothermal Energy Project EIR’s Rejection Of Proposed Mitigation Measures For Significant ROG Fugitive Emissions Impact Violated CEQA Where No Substantial Evidence Showed Measures’ Infeasibility

The City of Sacramento received an early Christmas present with the December 18 publication of the Third District Court of Appeal’s opinion in Citizens for Positive Growth & Preservation v. City of Sacramento (2019) 43 Cal.App.5th 609, which was originally filed on November 26, 2019.  The decision affirmed a trial court judgment upholding the City’s 2035 General Plan against the plaintiff group’s Planning and Zoning Law and CEQA challenges.  The opinion’s most significant CEQA holding was that plaintiff’s challenge to the EIR’s transportation impacts analysis was moot because the applicable law currently in effect at the time of judgment in the appellate court – specifically, Public Resources Code § 20199(b)(2) (enacted as part of SB 743) – provides that auto delays measured by LOS or similar measures shall not be considered significant environmental impacts.  The Court of Appeal also rejected all of plaintiff’s other CEQA challenges, including those to the City’s non-adoption of the no-project alternative, its decision not to recirculate the EIR after adding numerous supplemental changes to the draft 2035 General Plan, and its Final EIR’s GHG and cyclist safety analyses.

Continue Reading Out With The Old (And In With The New … Next Year)! – Third District Rejects CEQA And General Plan Consistency Challenges to Sacramento’s 2035 General Plan Update And Related EIR, Holds Traffic Analysis Challenge Based On Lowering of Acceptable LOS Is Mooted By Public Resources Code § 20199, But New VMT Standard Doesn’t Yet Apply

By October 21, 2019 letter – a decision on which is due by December 20, 2019 – the California State Association of Counties (“CSAC”) and the League of California Cities (“League”) have requested the California Supreme Court to depublish the Second District’s decision in a CEQA case involving a controversial Hollywood development project. Stopthemillenniumhollywood.com, et al. v. City of Los Angeles, et al. (2019) 39 Cal.App.5th 1.  A copy of the CSAC/League letter can be accessed here; I previously blogged on this case here.

Continue Reading Depublication of CEQA EIR Project Description Detail Case Sought by CSAC and League of Cities

In an opinion filed September 6, and later ordered published on October 7, 2019, the First District Court of Appeal (Div. 4) affirmed the trial court’s judgment denying plaintiff groups’ writ petition challenging Sonoma County’s use permit and related mitigated negative declaration (MND) for a winery project in the County’s rural Knights Valley area.  Maacama Watershed Alliance, et al v. County of Sonoma, et al. (James Bailey, Knights Bridge Vineyards, LLC, Real Parties in Interest) (2019) 40 Cal.App.5th 1007.

Continue Reading First District Affirms Judgment Upholding MND for Rural Sonoma County Winery Project, Holds Unsubstantiated Expert Opinion Fails to Support Fair Argument of Geologic, Erosion Or Groundwater Impacts

In a 68-page published opinion filed September 27, 2019, the Fourth District Court of Appeal (Div. One) affirmed the trial court’s judgment rejecting a plaintiff group’s numerous challenges to the California Coastal Commission’s (CCC) certification of a port master plan amendment by the San Diego Unified Port District (Port).  The amendment allows expansion of the San Diego Convention Center by the City of San Diego (City) and of the adjacent Hilton San Diego Bayfront hotel by One Park Boulevard, LLC (One Park).  San Diego Navy Broadway Complex Coalition v. California Coastal Commission, et al. (City of San Diego, et al., Interveners and Appellants) (2019) 40 Cal.App.5th 563.  While the trial court had rejected the statute of limitations defense of indispensable parties/interveners City and One Park and ruled against plaintiff’s Coastal Act and CEQA-based challenges to the CCC’s findings on the merits, the Court of Appeal disagreed with the statute of limitations ruling, and based its affirmance on the primary ground that the claims were time-barred by the Coastal Act’s applicable 60-day statute of limitations because interveners were not timely joined within that limitations period.  It also held plaintiff’s claims lacked substantive merit in any event.

Continue Reading Fourth District Rejects Coastal Act/CEQA-Based Challenges To Commission’s Certification of San Diego Port Plan Amendment As Time-Barred For Failure To Join Indispensable Parties Within Limitations Period

In an opinion originally filed on July 31, and belatedly ordered published on August 22, 2019, the Second District Court of Appeal (Division 3) affirmed a judgment granting a CEQA writ petition invalidating the final EIR and project entitlements for the Millennium Project, a controversial proposed mixed-use development on a 4.47-acre parcel straddling Vine Street and surrounding the historic Capital Records Building in Hollywood.  Stopthemillenniumhollywood.com, et al. v. City of Los Angeles, et al. (Millennium Hollywood LLC, Real Party in Interest) (2019) 39 Cal.App.5th 1.  The Court upheld the trial court’s finding that the EIR violated CEQA’s requirement for a stable and finite project description as a matter of law.  Reasoning that “the project description is at the heart of the EIR process in this case,” the Court found it “not necessary to reach appellants’ [the City and developer Millennium]” challenges to several other grounds upon which the trial court issued its writ, including findings that the EIR’s transportation analysis improperly failed to use responsible agency Caltrans’ methodology, that its analysis of cumulative traffic impacts was unsupported by substantial evidence, and that a condition of approval improperly expanded the approved project uses beyond those actually analyzed in the EIR.  It also declined to address plaintiff/cross-appellant’s claim that the City failed to notice and consult with the California Geological Survey regarding potential seismic hazards.

Continue Reading Are Urban Land Uses And Project Design Components Fungible For CEQA Project Description Purposes As Long As Maximum Possible Environmental Impacts Are Disclosed And Analyzed? Second District Doesn’t Think So, Holds Controversial Millennium Hollywood Project EIR’s “Blurry” Project Description Violates CEQA

Introduction And Overview

On August 19, 2019, the California Supreme Court issued its unanimous 38-page opinion, authored by Chief Justice Cantil-Sakauye, in the CEQA “project definition” case we’ve been tracking with interest.  Union of Medical Marijuana Patients, Inc. v. City of San Diego (California Coastal Commission, Real Party in Interest) (2019) 7 Cal.5th 1171, Case No. S238563.  As anticipated based on the high court’s questioning and remarks at oral argument (see “Supreme Court Hears Oral Argument in CEQA Project Definition Case,” posted June 6, 2019), it reversed the Fourth District Court of Appeal’s decision that the City’s approval of the medical marijuana dispensary ordinance at issue was not a CEQA “project”; accordingly, it held that the City was required to treat it as such and “proceed to the next steps of the CEQA analysis.”


Continue Reading Not A CEQA “Project”? Not So Fast, Lead Agency! Supreme Court Reverses Fourth District’s Decision That San Diego’s Adoption of Medical Marijuana Dispensary Ordinance Was Not A Project Requiring CEQA Review

In a 30-page opinion originally filed July 3, and certified for publication on July 18, 2019, the Third District Court of Appeal affirmed the trial court’s judgment denying a writ petition challenging, on zoning law and CEQA grounds, the City of Sacramento’s approval of a high-rise infill housing project in its midtown area.  Sacramentans for Fair Planning v. City of Sacramento (2500 J Owners, LLC, Real Party in Interest) (2019) 37 Cal.App.5th 698.  The project, known as the Yamanee project, calls for construction of a mixed-use condominium building 15 stories (and 178-1/2-feet) high on a .44-acre site at the southeast corner of 25th and J streets.  It would total 177,032 square feet of space on the 19,200 square foot site, consisting of one floor of commercial uses, three levels of parking, one floor of resident amenities, and 10 floors containing 134 residential condominiums.

Continue Reading Third District Upholds Sustainable Communities Environmental Assessment (SCEA) Used Instead Of Traditional CEQA Document To Approve High-Rise, High-Density Mixed-Use Condo Housing Project In Sacramento’s Midtown

In a 38-page opinion filed on May 16, and belatedly ordered published on June 14, 2019, the Third District Court of Appeal affirmed the trial court’s judgment rejecting all of plaintiff/appellant Center for Biological Diversity’s (“CBD”) CEQA and statutory challenges to the EIR that the California Department of Conservation, Division of Oil, Gas and Geothermal Resources (“DOGGR”) was required by S.B. 4 (Stats. 2013, ch. 13, § 2) to prepare “pursuant to [CEQA], to provide the public with detailed information regarding any potential environmental impacts of well stimulation in the state.”  (Pub. Resources Code, § 3161(b)(3)(A).)  The Court’s opinion addresses and disposes of CBD’s CEQA and other challenges in a highly unusual, and even unprecedented, context – that of a statutorily required program EIR addressing the statewide impacts of oil and gas well-stimulation treatments (including the controversial treatment known as hydraulic fracturing or “fracking”) prepared in the absence of any “project” being approved or undertaken by the ostensible “lead agency” (DOGGR).  Center for Biological Diversity v. California Department of Conservation, Division of Oil, Gas and Geothermal Resources, et al. (3d Dist. 2019) 36 Cal.App.5th 210.

Continue Reading The Curious Case of the EIR Without A “Project”: Third District Rejects CEQA, Statutory Challenges To DOGGR’s “Unique” S.B. 4-Mandated EIR Analyzing Statewide Fracking/Well Stimulation Impacts