In a published opinion filed October 26, 2022, the Second District Court of Appeal (Div. 6) appears to have significantly expanded the reach of both the Brown Act and the procedural requirements of CEQA in holding, on an issue of first impression, that a public agency must list its staff’s determination that a project is exempt from CEQA as an item of business on the agenda for the meeting at which it considers the project approval. G.I. Industries v. City of Thousand Oaks, et al (Arakelian Enterprises, Inc., Real Party In Interest) (2022) __ Cal.App.5th __. The opinion thus extends San Joaquin Raptor Rescue Center v. County of Merced (2013) 216 Cal.App.4th 1167 (“San Joaquin Raptor”), which held that a public agency’s decision to adopt a CEQA document, such as an EIR or negative declaration, must be described as a distinct item of business under the Brown Act when it is to be considered at a public hearing, to the distinct context of CEQA-exempt projects.
Continue Reading Second District Holds Brown Act Requires Lead Agency To List CEQA Exemption As Item of Business On Agenda For Public Meeting When Project Already Found Exempt By Staff Is Considered For Approval
Legislation
First District Affirms Judgment Upholding Statutory CEQA Exemption For Housing Project Consistent With EIR-Reviewed Specific Plan, Rejects Claims That Changes In Project Or Circumstances Required Subsequent EIR
In an opinion filed on December 29, 2021, and later ordered published on January 25, 2022, the First District Court of Appeal (Div. 4) affirmed a judgment upholding the City of Newark’s (City) use of Government Code § 65457’s CEQA exemption for a 469-lot residential subdivision on land adjacent to San Francisco Bay. Plaintiffs unsuccessfully challenged the City’s 2019 subdivision map approval based on the claim that a subsequent EIR was required due to changes in the project and circumstances allegedly showing it would have new significant impacts on the endangered salt marsh harvest mouse (“harvest mouse”) and its wetlands habitat. Citizens’ Committee to Complete the Refuge, et al. v. City of Newark et al., (SI XVII, LLC, et al, Real Parties in Interest) (2021) 74 Cal.App.5th 460.
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Continue Reading First District Affirms Judgment Upholding Statutory CEQA Exemption For Housing Project Consistent With EIR-Reviewed Specific Plan, Rejects Claims That Changes In Project Or Circumstances Required Subsequent EIR
First District Holds SWRCB Small Domestic Water Use Registration Is CEQA-Exempt Ministerial Act: “CEQA Does Not Regulate Ministerial Decisions – Full Stop.”
In a published opinion filed December 15, 2021, the First District Court of Appeal (Div. 5) affirmed a trial court’s judgment entered after sustaining a demurrer to a writ petition in a CEQA action without leave to amend. Mission Peak Conservancy, et al. v. State Water Resources Control Board (Christopher George, et al, Real Parties in Interest) (2021) 72 Cal.App.5th 873.
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Continue Reading First District Holds SWRCB Small Domestic Water Use Registration Is CEQA-Exempt Ministerial Act: “CEQA Does Not Regulate Ministerial Decisions – Full Stop.”
Third District Holds CEQA Does Not Authorize “Remedy” of “Limited EIR” To Augment Deficient MND; Rather, Full EIR Must Be Prepared Where Substantial Evidence Supports Fair Argument That Any Aspect Of Project May Have Significant Environmental Effect
In a partially published opinion filed on November 3, 2021, involving the CEQA review for a bed and breakfast/commercial event project proposed on property within a Yolo County agricultural zone, the Third District Court of Appeal (in a unanimous opinion authored by Justice Robie) reaffirmed the basic CEQA principle that a “full EIR” must be prepared whenever a project may have any significant environmental effect; it thus reversed the trial court’s judgment that had allowed a deficient revised Mitigated Negative Declaration (MND) and its mitigation measures to remain intact while ordering Yolo County to also prepare an EIR limited to addressing only the project’s impacts on three species of concern (tricolored blackbird, valley elderberry longhorn beetle, and golden eagle). The Court of Appeal reversed and remanded with instructions to issue a peremptory writ directing the County to set aside its MND approval and to prepare a full EIR instead. Farmland Protection Alliance v. County of Yolo (2021) 71 Cal.App.5th 300. (In the unpublished portion of its opinion, which won’t be further discussed in this post, the Court of Appeal held the trial court was correct in finding that substantial evidence supported a fair argument that the project may have a significant impact on the beetle, thus requiring an EIR, and also concluded the trial court did not err in upholding the County’s determinations that the project was consistent with the Williamson Act and County’s zoning code.)
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Continue Reading Third District Holds CEQA Does Not Authorize “Remedy” of “Limited EIR” To Augment Deficient MND; Rather, Full EIR Must Be Prepared Where Substantial Evidence Supports Fair Argument That Any Aspect Of Project May Have Significant Environmental Effect
A Teaching Moment? First District Affirms CEQA Action Demurrer Order Finding Late-Joined Developers of UC Berkeley Campus Project Were Necessary, But Not Indispensable, Real Parties In Interest
In a published opinion filed October 21, 2021, the First District Court of Appeal affirmed the trial court’s order finding the real party developers of a UC Berkeley campus development project – undertaken for the University’s benefit, and in which it had a strong vested interest – were necessary parties, but were not indispensable parties to a CEQA action challenging the project EIR under the factors of the Code of Civil Procedure (“CCP”) § 389(b). While the action was thus properly dismissed as against those real parties upon their demurrers due to plaintiff’s failure to join them within CEQA’s 30-day limitations period, it was not required to be dismissed in its entirety and could continue to final adjudication among the remaining parties. Save Berkeley’s Neighborhoods v. The Regents of the University of California (Collegiate Housing Foundation, American Campus Communities, et al, Real Parties in Interest) (2021) 70 Cal.App.5th 705.
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Continue Reading A Teaching Moment? First District Affirms CEQA Action Demurrer Order Finding Late-Joined Developers of UC Berkeley Campus Project Were Necessary, But Not Indispensable, Real Parties In Interest
A Decade of CEQA Developments
On September 13, 2011, I began the endeavor of writing Miller Starr Regalia’s CEQA Developments blog. Ten years and 358 blog posts later, it continues to be a challenging and rewarding task. Since my inaugural post (which can be viewed here) was a “top ten” list of CEQA litigation mistakes to avoid, I thought an appropriate tenth anniversary post might be a list of the ten most significant CEQA case law developments over the past decade. My “top ten” list is definitely subjective, is limited to Supreme Court decisions, and (by its very nature) fails to include many important judicial developments. Nonetheless, here it is (with the decisions listed in no particular order):
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Continue Reading A Decade of CEQA Developments
First District Holds CEQA Special Legislation For Oakland Howard Terminal Project (AB 734) Did Not Incorporate AB 900 Guidelines’ Deadline For Governor Certification; Governor Newsom’s Certification of Project As Qualifying For Expedited Judicial Review Was Timely
By Arthur F. Coon on
Of all the major sports, baseball is the only one that is not played “on the clock.” So it’s only fitting that the First District recently held the special legislation (AB 734; Pub. Resources Code, § 21168.6.7) enacted to provide fast-track judicial review benefits to the Oakland A’s baseball park/mixed use development project (Howard Terminal Project) likewise had no terminal time limit. In a published decision filed August 10, 2021, the First District Court of Appeal affirmed the trial court’s judgment rejecting petitioners’ claim that the clock ran out on January 1, 2020 on Governor Newsom’s authority to certify the project as meeting the statute’s qualifying criteria. Pacific Merchant Shipping Association, et al. v. Gavin C. Newsom, etc., et al. (Oakland Athletics Investment Group, LLC, Real Party in Interest) (2021) 67 Cal.App.5th 711. The Court held that because AB 734 itself contains no deadline for certification, and the Legislature did not intend to incorporate the January 1, 2020 deadline from the Governor’s AB 900 Guidelines, Governor Newsom’s authority did not expire prior to his exercise of it, meaning that his subsequent February 11, 2021 certification (made shortly after the trial court’s favorable decision) was valid and effective.
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Continue Reading First District Holds CEQA Special Legislation For Oakland Howard Terminal Project (AB 734) Did Not Incorporate AB 900 Guidelines’ Deadline For Governor Certification; Governor Newsom’s Certification of Project As Qualifying For Expedited Judicial Review Was Timely
AB 819 Revises Statutory Procedures For Submitting Lead Agency CEQA Documents And Notices To OPR’s State Clearinghouse, Expands Requirements/ Options For Electronic Posting Of Notices By Lead Agencies And County Clerks
By Arthur F. Coon on
Assembly Bill No. 819 (AB 819), was signed by the Governor and filed with the Secretary of State on July 16, 2021, and as non-urgency legislation will become effective on January 1, 2022. The bill amends nine statutory sections that are part of CEQA, and it affects requirements for lead agencies submitting CEQA documents and notices to OPR’s State Clearinghouse and to County Clerks for filing, and also requirements for the posting of certain notices. Highlights of the new AB 819 legislation include:
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Continue Reading AB 819 Revises Statutory Procedures For Submitting Lead Agency CEQA Documents And Notices To OPR’s State Clearinghouse, Expands Requirements/ Options For Electronic Posting Of Notices By Lead Agencies And County Clerks
COVID-Related Conditional Suspension of CEQA Public Filing, Posting, Notice, and Other Requirements To Sunset On September 30, 2021 Under New Executive Order
Pursuant to Governor Newsom’s June 11, 2021 Executive Order N-08-21, the conditional suspension of certain public agency requirements related to the filing and posting of CEQA notices (i.e., NOEs, NODs, and notices of intent and availability) will end on September 30, 2021. The COVID-related suspension had previously been ordered in April 2020 by Executive Order N-54-20; it was later indefinitely extended by Executive Order N-80-20, as discussed in a prior October 12, 2020 post by Arielle Harris and me that can be accessed here. The Governor’s new EO means that, as of September 30, the conditionally authorized alternative procedures for publicizing the relevant CEQA documents will no longer be authorized or available to public agencies, and the normal filing, noticing and posting requirements will resume and again apply with full force.
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Continue Reading COVID-Related Conditional Suspension of CEQA Public Filing, Posting, Notice, and Other Requirements To Sunset On September 30, 2021 Under New Executive Order
CEQA Urgency Legislation Reenacts Modified Version of Environmental Leadership Act, Adds Certain Housing Development Projects As Eligible For Governor Certification And Streamlining Benefits
By Arthur F. Coon on
On May 20, 2021, Governor Newsom signed into law Senate Bill No. 7, the “Jobs and Economic Improvement Through Environmental Leadership Act of 20216” (the “Act”), which repealed and added Chapter 6.5 to Division 13 of the Public Resources Code (sections 21178 through 21189.3). The new Act, which was immediately effective as an “urgency” statute, essentially modifies and reenacts former 2011 legislation that was repealed by its own terms on January 1, 2021. Like the former leadership act, the new legislation authorizes the Governor, until January 1, 2024, to certify certain “environmental leadership development projects” (“leadership projects”) that meet specified requirements for streamlining benefits related to CEQA. (Pub. Resources Code, §§ 21180, 21181.) To qualify for CEQA streamlining benefits under the new Act, the Governor must certify a project as a leadership project before January 1, 2024. (§ 21181.)
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Continue Reading CEQA Urgency Legislation Reenacts Modified Version of Environmental Leadership Act, Adds Certain Housing Development Projects As Eligible For Governor Certification And Streamlining Benefits