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In a published decision filed May 28, 2015, the Fourth District Court of Appeal reversed that part of the trial court’s judgment granting a writ of mandate and otherwise affirmed the judgment, thus upholding the City of San Diego’s Balboa Park revitalization project (“Project”) against various land use law and CEQA challenges. Save Our Heritage Organization v. City of San Diego (The Plaza de Panama Committee, Real Party in Interest) (4th Dist.2015) 237 Cal.App.4th 163.
Continue Reading Fourth District Upholds San Diego’s Balboa Park Revitalization Project Against Land Use Law And CEQA Challenges

On May 27, 2015, the California Supreme Court filed a 4-page order modifying portions of the majority and concurring opinions previously filed March 2, 2015, in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086. The modifications, made to the majority opinion at pages 1098-1099, 1102, and to the concurring opinion at page 1130, soften the majority’s comparison between (1) the unsuccessful appellants’ position on operation of the unusual circumstances exception to categorical exemptions, and (2) the operation of CEQA’s co-called “common sense” exemption embodied in Guidelines § 15061(b)(3).
Continue Reading CEQA Categorical Exemption Case Opinion Ordered Slightly Modified By Supreme Court; Berkeley Hillside Preservation Judgment Is Unaffected

In a published opinion filed May 20, 2015, the Fourth District Court of Appeal reversed the trial court’s judgment granting mandate relief based on a general plan violation, affirmed its denial of relief under CEQA, and thereby upheld the City of Newport Beach’s approval of a mixed-use development within the coastal zone on the 400-acre Banning Ranch property. Banning Ranch Conservancy v. City of Newport Beach (Newport Banning Ranch LLC, et al., Real Parties in Interest) (4th Dist., Div. 3, 2015) 236 Cal.App.4th 1341.
Continue Reading Fourth District Holds CEQA Does Not Require City To Predict ESHA Determinations In Approving Project Over Which Coastal Commission Retains Permitting Jurisdiction, And Applies Deferential Standard In Reversing Trial Court’s General Plan Inconsistency Finding

In an opinion filed March 18 and belatedly ordered published on April 13, 2015, the Fourth District Court of Appeal upheld a trial court’s discretion to award only $19,176 in attorneys’ fees under Code of Civil Procedure § 1021.5 to a successful CEQA plaintiff (SOURCE) who sought $221,198 based on a $110,599 “lodestar” with a multiplier of two. Save Our Uniquely Rural Community Environment v. County of San Bernardino (Al-Nur Islamic Center, Real Party in Interest) (4th Dist., Div. 2, 2015) 235 Cal.App.4th 1179.  SOURCE, an organization of individuals, had successfully challenged San Bernardino County’s mitigated negative declaration (MND) and conditional use permit (CUP) for real party in interest Al-Nur Islamic Center’s proposed 7,512-square foot Islamic community center and mosque to be located on a 1.54-acre parcel in a residential part of the unincorporated county. Rejecting 5 of its 6 CEQA arguments, the trial court granted SOURCE’s writ petition on the sole ground that county failed to properly analyze the project’s environmental impacts from wastewater disposal, and ordered county to adequately analyze such impacts under CEQA.
Continue Reading Winners Beware – Fourth District Upholds Trial Court’s Discretion To Drastically Reduce Successful CEQA Plaintiff’s Fees In Granting CCP §1021.5 “Private Attorney General” Award

On March 11, 2015, the California Supreme Court granted the San Diego Association of Governments’ (SANDAG) petition for review of the Fourth District Court of Appeal’s decision in Cleveland National Forest Foundation v. San Diego Association of Governments (Case No. S223603). As reflected on the Supreme Court’s docket, the Order granting review limited the issues to be briefed and argued to the following: “Must the environmental impact report for a regional transportation plan include an analysis of the plan’s consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. 5-3-05 to comply with the California Environmental Quality Act …?” All seven justices voted to review this issue.
Continue Reading Supreme Court Will Review CEQA Decision Invalidating SANDAG’s 2050 RTP

In a 46-page majority opinion written by Justice Chin and joined by four other justices, punctuated by an 18-page concurring opinion (by Justice Liu, joined by Justice Werdegar) which reads like a dissent, the California Supreme Court reversed the First District Court of Appeal’s judgment in Berkeley Hillside Preservation v. City of Berkeley (Case Nos. S201116, A131254) and remanded for further proceedings.
Continue Reading California Supreme Court Construes CEQA’s “Unusual Circumstances” Exception to Categorical Exemptions in Berkeley Hillside Preservation v. City of Berkeley Decision

In a published opinion filed February 18, 2015, the Third District Court of Appeal rejected all legal challenges to the City of Sacramento’s EIR and CEQA compliance for approval of its new downtown entertainment and sports center (ESC) which will serve as the Sacramento King’s new home arena. Saltonstall v. City of Sacramento (3d Dist. 2015) 234 Cal.App.4th 549. Key points of the Court’s decision, which affirmed the trial court’s judgment denying the writ sought by project opponents, include:
Continue Reading CEQA Review of Sacramento Kings Downtown Arena Project Held Legally Adequate In Published Third District Opinion

I recently analyzed proposed legislation (SB 122) seeking to create an alternative procedure for preparation of the CEQA administrative record concurrently with administrative proceedings on a project and prior to any litigation challenging it.  (See “Latest Proposed CEQA Legislation (SB 122) Seeks To Reform Administrative Record Process – At A Price,” by Arthur F. Coon, posted January 22, 2015.)  Under proposed SB 122 the project applicant could initiate the alternative procedure by request to the public agency and, if the procedure were agreed to by the agency, an expedited and statutorily complete record would be prepared.  However, this would be solely at the applicant’s cost and without any ability to recover that cost even if successful in subsequent litigation.
Continue Reading How CEQA’s Administrative Record Preparation Process Could Be Reformed By Eliminating CEQA Petitioners’ Statutory Option To Prepare The Record

California Senate Bill No. 122 (SB 122), introduced by Senators Jackson, Hill and Roth on January 15, 2015, appears to be the newest stab at legislative CEQA “reform.”  But numerous of SB 122’s embryonic provisions raise questions as to whether this proposed curative measure might have some deleterious side effects.
Continue Reading Latest Proposed CEQA Legislation (SB 122) Seeks To Reform Administrative Record Process – At A Price