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) ___ Cal.App.5th ___. 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.
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Legislation
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
By Arthur F. Coon on
Posted in Alternatives, CEQA Guidelines, Land Use, Legislation, Litigation, Project Description, Remedies
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) ___ Cal.App.5th ___. 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.
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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
By Arthur F. Coon on
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) ____ Cal.5th ____, 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.”
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
By Arthur F. Coon on
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.
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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
By Arthur F. Coon on
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.
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Supreme Court Hears Oral Argument In CEQA Project Definition Case
By Arthur F. Coon on
Posted in Baseline, CEQA Guidelines, Exemptions, Land Use, Legislation, Litigation, Mitigation, Uncategorized
The California Supreme Court heard oral arguments in an important case we’ve been following involving CEQA’s definition of a “project” on the afternoon of June 4, 2019, and took the matter under submission. The case – Union of Medical Marijuana Patients v. City of San Diego (California Coastal Commission, Real Party in Interest), No. S238563 – involves a City of San Diego ordinance authorizing (as a new use in industrial/commercial zones) and restricting the location and manner of operation of medical marijuana dispensaries within the City, and plaintiff’s challenge to the City’s determination that its adoption of the ordinance was not a “project” for purposes of having to undergo CEQA review. The Court’s grant of review encompassed the issues whether the particular ordinance is a CEQA project and also whether zoning ordinances in general are CEQA projects.
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Supreme Court Schedules Argument In CEQA Project Definition Case
By Arthur F. Coon on
On May 15, 2019, the California Supreme Court announced it would hear oral argument in Union of Medical Marijuana Patients v. City of San Diego (California Coastal Commission), Case No. S238563, on June 4, 2019, at 2:00 p.m. in its Los Angeles courtroom. This is a long-awaited development as review was unanimously granted in this case on January 11, 2017, and the case was fully briefed by the parties in October 2017. My prior blog post on the case, which presents the important legal issue whether an amendment to a zoning ordinance is, categorically, a “project” under CEQA (see Pub. Resources Code, §§ 21065, 21080(a)), can be found here.
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Spring CEQA Notes – May 2019
By Arthur F. Coon on
Save Lafayette Trees Litigation Update: The Beat Goes On
We last posted on this decision (currently published as Save Lafayette Trees v. City of Lafayette (Pacific Gas and Electric Company, Real Party in Interest) (1st Dist. 2019) 32 Cal.App.5th 148) and its significant CEQA/Planning and Zoning Law statute of limitations holdings in my February 26, 2019 post, which can be found here. In that post, it was noted (among other things) that the Court’s opinion after rehearing was issued on February 8, 2019, following the January 29, 2019 bankruptcy filing of real party PG&E, but that it did not address the effect (if any) of the automatic stay.
Legislature Enacts New Statutory CEQA Exemption, Modeled After Class 32 Categorical Exemption, For Certain Infill Multifamily Housing Developments In Urbanized, Unincorporated County Areas
By Arthur F. Coon on
The California Legislature has enacted new Public Resources Code § 21159.25, effective as of January 1, 2019 (Stats. 2018, c. 670 (A.B. 1804)), which extends much of the substance of the existing CEQA Guidelines’ Class 32 categorical exemption for “infill development” (14 Cal. Code Regs., § 15332) to certain multi-family housing projects in urbanized, unincorporated county areas. While largely patterned after the Class 32 exemption, the statute thus has a few unique and significant twists and limitations, as explained below.
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Coastal Act Trumps CEQA: CDP Challenger Must Administratively Appeal Local Entity’s Approval To Coastal Commission Before Bringing Judicial Action
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.
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