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In an important opinion filed October 21, and later ordered published on November 18, 2024 (at the request of the California State Association of Counties and the Rural County Representatives of California), the Sixth District Court of Appeal interpreted key terms in the CEQA Guidelines Class 32 categorical exemption, which applies to “in-fill development” projects that meet specified criteria, including being “substantially surrounded by urban uses.”  In doing so, the Court upheld a low-population city’s use of the exemption for a Grocery Outlet project near Highway 101.  Working Families of Monterey County, et al. v. King City Planning Commission (Best Development Group, LLC, Real Party in Interest) (2024) ___ Cal.App.5th ___.Continue Reading Sixth District Affirms Judgment Upholding Application of CEQA Guidelines Class 32 Infill Development Exemption To Project On Parcel Substantially Surrounded By Urban Uses In Small-Population City

In a partially published opinion filed October 31, 2024, the Second District Court of Appeal (Div. 1) held, in light of AB 1307 and the Supreme Court’s decision in Make UC a Good Neighbor v. Regents of University of California (2024) 16 Cal.5th 43 (”Make UC II”), that noise from residents congregating on a USC-area residential housing project’s rooftop decks “do[es] not constitute a significant environmental effect impeding application of the Class 32 exemption[,]” including through attempted invocation of the unusual-circumstances exception.  West Adams Heritage Association et al. v. City of Los Angeles (Robert Champion at al, Real Parties in Interest) (2024) 106 Cal.App.5th 395.  The Court held that reversal was required for another reason, however, as the City failed to determine the project’s consistency with an applicable redevelopment plan, which the City had by ordinance incorporated into its applicable zoning, prior to granting the exemption.  (In the unpublished portion of its opinion, which won’t be further discussed in detail here, the Court also rejected appellants’ CEQA challenges to the infill exemption based on alleged significant traffic safety, historical resources, and cumulative impacts.)Continue Reading Fight On! After Grant and Transfer, Second District Holds Upon Reconsideration that Resident Noise Does Not Preclude CEQA Class 32 Infill Exemption for USC Area Housing Development Project; But Also Holds City Must First Find Project Consistent With Redevelopment Plan Incorporated Into Zoning Before Granting Exemption

In a published opinion filed October 21, 2024, the Second District Court of Appeal (Div. 7) reversed a judgment entered after the trial court granted without leave a real party developer’s motion for judgment on the pleadings, based on statute of limitations grounds, in a writ of mandate action alleging CEQA and Planning and Zoning Law causes of action and challenging the permit and vesting tentative map approvals for a residential subdivision project.  Santa Clarita Organization for Planning the Environment et al v. County of Los Angeles (Williams Homes, Inc., Real Party in Interest) (2024) 105 Cal.App.5th 1143.  The Court held that judgment on the pleadings was improper as to the CEQA claim because Government Code section 66499.37, the Subdivision Map Act’s (SMA) statute of limitations requiring filing and service of summons within 90 days in subdivision-related actions, could not completely dispose of that cause of action.  The Court reasoned this was so because most of the claims alleged in that cause of action were “procedural violations” and other claims “unique to CEQA” that could not have been brought under the SMA.  The Second District’s opinion is poorly reasoned and concerning because it appears to diverge from the statute’s plain language, as well as from prior caselaw construing it to have an extremely broad application to any subdivision-related action, and to read into it a new and significant limitation on its reach, essentially making it applicable only to actions attacking a subdivision decision based on legal theories that are or could be brought under the SMA.Continue Reading In Writ Action Attacking Vesting Tentative Map Approval, Second District Holds Plaintiffs’ Failure to Comply With Subdivision Map Act Statute of Limitations’90-Day Service-Of-Summons Requirement Does Not Bar Major “Portion” of CEQA Cause of Action Alleging “Procedural Violations Unique to CEQA” And Other Claims That Could Not Be Brought Under Map Act

“Do not go gentle into that good night.  Rage, rage against the dying of the light.”

– Dylan Thomas

In a published decision filed October 7, 2024, the Third District Court of Appeal affirmed the trial court’s judgment rejecting a CEQA challenge to the revised EIR for the State Capitol renovation project based on recent legislation exempting that project from CEQA.  Save Our Capitol! v. Department of General Services (Joint Committee on Rules of the California State Senate and Assembly) (2024) 101 Cal.App.5th 1237.  This was the Court’s third published appellate decision in the CEQA litigation over the controversial project; see my posts dated January 2 and January 23, 2023 and May 23, 2024, covering the Court’s initial two published decisions finding flaws in the project EIR, and in the trial court’s premature discharge of the remedial writ, and my post dated July 11, 2024 covering the dispositive statutory CEQA exemption enacted through SB 174.Continue Reading Third Time’s the Charm: Third District Crowns State the Winner By Legislative Decree In Third Published CEQA Decision Arising From Capitol Renovation Project

On October 7, 2024, the First District Court of Appeal (Div. 5) issued a 6-page “Order Denying Respondent’s Petition for Rehearing and Modifying Opinion [No Change in Judgment]” (the “Order”) in Sunflower Alliance v. California Department of Conservation, et al. (Reabold California, LLC) (2024) 104 Cal.App.5th 1135, a case upholding a CEQA Guidelines Class 1 categorical exemption for an oil well conversion project (my 9/9/24 post on which can be found here).  The main thrust of the Order, a copy of which can be reviewed here, is to bolster the Opinion’s refutations of certain of Respondent Sunflower Alliance’s arguments, including its argument made on rehearing that the Secretary cannot have intended for categorical exemptions to call for an “early stage” assessment of environmental impacts; the Court called Sunflower’s position “wrong,” citing numerous examples of categorical exemptions calling for such assessments, which it noted function as limits on the application of the exemptions, and are also consistent with the agencies’ duty to consider environmental impacts when evidence in their records suggests an exception to the exemption may apply.Continue Reading First District Denies Rehearing, Modifies Opinion in CEQA Guidelines Class 1 Categorical Exemption Case With No Change in Judgment

In a published decision filed September 6, 2024, the First District Court of Appeal (Div. 5) reversed the trial court’s judgment granting a writ of mandate and upheld the use of CEQA’s Class 1 categorical exemption (CEQA Guidelines, § 15301) by the California Department of Conservation’s Division of Geologic Energy Management (“CalGEM”) in approving a project to convert an oil well that previously pumped oil and water from a deep aquifer into an injection well that would pump excess water produced from oil extraction back into that aquifer.  Sunflower Alliance v. California Department of Conservation, et al. (Reabold California, LLC, Real Party in Interest) (2024) 104 Cal.App.5th 1135.  Because the project involved only minor physical alterations to the well, and the factual record showed the environmental risks from the well’s changed use – i.e., injecting water into the aquifer instead of pumping it out – were negligible, the project fell within the exemption. Continue Reading First District Holds CEQA Class 1 Categorical Exemption Applies To Approval of Project Converting Existing Oil Well Into Produced-Water Injection Well Because Changed Use Presents “Negligible” Risk of Environmental Harm

It’s good to be king and have your own way
Get a feeling of peace at the end of the day

“It’s Good to be King” – Tom Petty

California Senate Bill No. 174 (SB 174), a budget trailer bill that was passed by the Assembly with amendments on June 26, received Senate concurrence on the amendments the same day, and was enrolled and presented to the Governor the next day (June 27); SB 174 was approved by the Governor on July 2, 2024.  The new law does two noteworthy things relating to CEQA.Continue Reading Budget Trailer Bill SB 174 Exempts State Capitol Renovation Project From CEQA, Extends Existing Statutory Exemption for Wildlife/Habitat Protection Projects

“It ain’t over ‘til it’s over.” Yogi Berra and Lenny Kravitz

In a unanimous opinion filed on June 6, 2024, the California Supreme Court reversed the judgment of the First District Court of Appeal in the controversial “People’s Park” case, thus upholding the Regents’ 2021 Long-Range Development Plan (LRDP) EIR and clearing the legal path for UC Berkeley’s residential development at the People’s Park site.  Make UC A Good Neighbor v. Regents of University of California (2024) 16 Cal.5th 43. (My prior posts on the Court of Appeal’s decision and the Supreme Court’s grant of review in this case can be found here (3/3/23 post) and here (5/21/23 post).)Continue Reading Supreme Court Holds Legislature’s Case-Driven CEQA Amendments Require Judgment Upholding UC Berkeley’s 2021 Long-Range Development Plan EIR and People’s Park Housing Project Against Claims of Failures to Analyze Student “Social Noise” and Alternative Locations

Miller Starr Regalia’s developer clients are always keenly interested in efficient and defensible CEQA compliance, which entails effective utilization of legislative and regulatory exemptions and streamlining options where the same are available for particular projects. My partner, Carolyn Nelson Rowan, the incoming Editor-in-Chief of the Miller & Starr California Real Estate 4th treatise, and I took a detailed look at recent judicial application of the statutory CEQA exemption implemented by CEQA Guidelines §15183, which can provide either a complete exemption or streamlining benefits for projects consistent with the development density/intensity established by existing community plans or zoning policies reviewed by a prior EIR. Our article on the same, “Hilltop Group, Inc. v. County of San Diego: Throwing a Judicial Monkey Wrench Into the Spin Cycle of Local Agency CEQA Laundering?” was published in the May 2024 issue of the Miller & Starr Real Estate Newsalert, and can be found here.Continue Reading Recent Judicial Developments in CEQA Exemptions and Streamlining

In a partially published opinion filed March 29, 2024, the First District Court of Appeal (Div. 4) rejected contentions that the pre-judgment completion of construction of a shooting range mooted a CEQA challenge to the project; it held an effective remedy in the form of various mitigation measures alleged in the CEQA petition remained available and reversed the trial court’s judgment entered in favor of respondents and real party after sustaining their demurrers and granting their motions to strike and for judgment on the pleadings.  In addition to applying established mootness principles, the Court resolved a number of other issues in holding petitioner Vichy Springs Resort, Inc. (“Vichy”) had sufficiently alleged a CEQA claim at the pleadings stage against both the City of Ukiah (“City”) and the County of Mendocino (“County”) in a unique factual and legal context presenting novel issues of land use regulatory authority and intergovernmental immunity.  Vichy Springs Resort, Inc. v. City of Ukiah, et al. (Ukiah Rifle and Pistol Club, Inc., Real Party in Interest) (2024) 101 Cal.App.5th 46.Continue Reading First District Holds CEQA Challenge To Shooting Range Project On City-Owned Land In Unincorporated County Was Not Mooted By Project’s Construction During Trial Court Proceedings Despite Petitioner’s Failure To Seek Preliminary Injunction