In a published opinion filed on February 23, 2023, the Fourth District Court of Appeal reversed a judgment of dismissal after the sustaining of a demurrer and held that an amended writ petition challenging a city’s street closure project sufficiently stated claims against the city for Vehicle Code, local ordinance, and CEQA violations. Committee to Relocate Marilyn v. City of Palm Springs (PS Resorts, Real Party in Interest) (2023) ___ Cal.App.5th ___. As relevant here, it held the operative petition was not time-barred despite its first alleging CEQA violations more than 35 days after the City’s filing of a Notice of Exemption (“NOE”) because the City subsequently changed its project from a street vacation to an allegedly temporary street closure and Petitioner (the “Committee” or “Petitioner”) filed its amended petition alleging a CEQA claim within 180 days of learning of the change.
Litigation
First District Reverses Judgment In Controversial “People’s Park” CEQA Case, Holds UC Regents’ Program/Project EIR For Long Range Development Plan And Site-Specific Student Housing Project At The Park Failed To Adequately Analyze Alternative Housing Sites, And Student Noise Impacts
In a published opinion filed February 24, 2023, the First District Court of Appeal (Div. 5) reversed a judgment upholding the adequacy of the EIR for the University of California, Berkeley’s long range campus development plan (“LRDP”) and a controversial housing development project at the historic People’s Park. Make UC a Good Neighbor v. Regents of University of California (Resources for Community Development, Real Party in Interest) (2023 ___ Cal.App.5th ___. The opinion comes in a case that has been much publicized in popular news media as involving both development of an iconic historic site, currently plagued with crime and homelessness, and treatment of housed college students as presumptive purveyors of “party noise” environmental impacts; it has also (justifiably) resulted in renewed calls for CEQA reform, including from Governor Newsom.…
Fourth District Holds Addendum To 2010 Program EIR For Irvine Business Complex Vision Plan Violated CEQA Because Conclusion That Large Infill Project’s GHG Emissions Would Be Less Than Significant Lacked Substantial Evidence And Project Was Not Exempt
In a published opinion filed February 6, 2023, the Fourth District Court of Appeal (Div. 3) affirmed a judgment setting aside an addendum to a 2010 program EIR (PEIR) and accompanying approvals for a 275,000-square foot office complex on a 4.95-acre parcel (the “Gemdale project” or “project”) within the 2,800-acre Irvine Business Complex (IBC). IBC Business Owners for Sensible Development v. City of Irvine (Gemdale 2400 Barranca Holdings, LLC, Real Party in Interest) (2023) 88 Cal.App.5th 100. The Court held that the City’s approval of the Addendum was improper because substantial evidence did not support the conclusion that the project’s GHG emissions were within the scope of the PEIR and would have less than significant impacts; further, the project was unusually large and dense due to its utilization of transfers of development rights (TDRs) of over 220,000 square feet – by far the largest ever approved in the IBC’s history – and thus could not qualify for the Class 32 infill exemption due to the unusual circumstances exception.…
Supreme Court Denies Review And Depublishes Troublesome Brown Act/CEQA Exemption Decision
On February 15, 2023, the California Supreme Court denied the petitions for review and issued an order decertifying the Second District Court of Appeal’s controversial (and previously published) opinion in G.I. Industries v. City of Thousand Oaks (2022) 84 Cal.App.5th 814, rev. den. and depub’d. 2/15/23 (Supreme Ct. Case No. S277439). (My prior posts on this decision and its subsequent procedural history can be accessed by clicking on their following dates: 10/31/22; 12/5/22; and 1/30/23.) …
First District Upholds Use of Government Code Section 65457 CEQA Exemption For Downtown Livermore Affordable Housing Project, Roundly Rejects Meritless Arguments of NIMBY Opposition
In an opinion in a much-publicized case, filed December 28, 2022, and later ordered published on January 26, 2023, the First District Court of Appeal (Div. 3), upheld the City of Livermore’s (“City”) approval of a 130-unit affordable housing project on a downtown infill site and its accompanying determination that the project was CEQA-exempt under Government Code section 65457 (“Section 65457”). (Save Livermore Downtown v. City of Livermore (2023) 87 Cal.App.5th 1116 (“SLD”).) The important opinion was ordered published based on requests submitted by City, Attorney General Rob Bonta, YIMBY, and the California Building Industry Association.…
Third District Adds Brief CEQA Severance Analysis After Rehearing In Save Our Capitol! Case, Limits Its Relief To Allow Capitol Annex Demolition To Go Forward
In an opinion on rehearing filed January 18, 2023, the Third District Court of Appeal reissued its previous published opinion in the Save Our Capitol! case (my January 2, 2023 post on which can be found here) with the addition of a few pages of discussion addressing “Relief” inserted at the end of the majority opinion just before its “Disposition.” …
Fatal “Exhaustion”: Fifth District Holds CEQA’s Statute of Limitations Ran Out On Plaintiff’s Claim While Plaintiff Thought It Was Still In Process Of Exhausting Administrative Remedies
By Matthew C. Henderson & Arthur F. Coon on
As all CEQA practitioners know, a prospective petitioner in a writ proceeding challenging a CEQA determination must first exhaust available administrative remedies as a prerequisite to filing suit. But which remedies are subject to that requirement? That is the question presented in the recent case of American Chemistry Council v. Dept. of Toxic Substances Control (5th Dist. 2022) 86 Cal.App.5th 146, originally filed on November 18, 2022, and certified for publication on December 12, 2022.
The American Chemistry Council case deals with the interplay of CEQA with another statutory scheme, the so-called “Green Chemistry” law (Health & Safety Code, § 25251 et seq.) and its implementing Safer Consumer Products regulations (Cal. Code Regs., tit. 22, § 69501 et seq.), in the context of exhaustion of administrative remedies. The case illustrates the sometimes perilous position of a CEQA practitioner seeking to satisfy the exhaustion requirement while avoiding the running of the very short statutory limitations period within which a CEQA action must be commenced.…
When CEQA Litigation Turns Tortious: First District Affirms Order Denying Anti-SLAPP Motion, Allows Malicious Prosecution Action To Proceed Against Counsel Who Brought Unsuccessful CEQA Challenge To Single-Home Project
While CEQA is a complicated area of law, often criticized as a “plaintiff’s sandbox,” CEQA litigation is not a “free-for-all” immune from malicious prosecution actions when it is unsuccessfully pursued with malice and without probable cause. Such is the teaching of the First District Court of Appeal’s December 28, 2022 published opinion in Charles Jenkins et al v. Susan Brandt-Hawley et al (1st Dist., Div. 2, 2022) 86 Cal.App.5th 1357, which affirmed the trial court’s order denying an anti-SLAPP motion and allowing a malicious prosecution action to proceed against a prominent CEQA attorney and her law firm.…
A “Capitol” Offense: Third District Holds State Capitol Building Annex/Visitor Center Project EIR Violated CEQA Due To Inadequate Project Description And Analyses Of Historical Cultural Impacts, Aesthetics, And Project Alternatives
In a published opinion filed December 6, 2022, the Third District Court of Appeal reversed in part and affirmed in part the trial court’s judgment denying writ petitions in consolidated actions challenging the EIR for a major state government project affecting the Historic State Capitol Building and Annex in Sacramento. Save Our Capitol! v. Department of General Services (Joint Committee On Rules of the California State Senate and Assembly, Real Party in Interest)/Save the Capitol, Save the Trees v. Department of General Services, et al. (2022) 85 Cal.App.5th 1101. In the project’s final iteration, Defendant/Respondent Department of General Services and Real Party/Respondent Joint Committee, etc. (collectively, “DGS”) proposed to demolish the Historic Capitol’s 325,000 square-foot Annex, replace it with a larger 525,000 square-foot Annex building, construct a 40,000 square-foot underground visitor center attached to the Historic Capitol’s west side, and construct a 150-space underground parking garage east of the new Annex. While rejecting many of plaintiffs’ CEQA challenges to the project’s final EIR (FEIR), the Court of Appeal found merit in claims that the EIR’s project description, analyses of impacts to historical resources and aesthetics, and alternatives analysis were deficient. Accordingly, it directed issuance of a writ vacating the EIR certification and project approval and directing DGS to revise and recirculate the EIR’s deficient sections before again considering project approval.
First District Rejects CEQA Challenges To EIR For Petaluma River Apartment Project, Upholds Special Status Species Baseline And Public Safety/Emergency Access Impacts Analyses As Supported By Substantial Evidence
By Arthur F. Coon on
Posted in Baseline, CEQA Guidelines, Land Use, Litigation, Mitigation, Reform, Standard of Review, Wildfire
In an opinion filed on November 14, and later certified for publication on December 13, 2022, the First District Court of Appeal (Div. 3) affirmed a Sonoma County Superior Court judgment upholding the EIR for a 180-unit apartment complex proposed on a 15.45-acre parcel of vacant land along the Petaluma River. Save North Petaluma River and Wetlands v. City of Petaluma (J. Cyril Johnson Investment Company, Real Party in Interest) (2022) ___ Cal.App.5th ___. The issues considered on appeal involved the adequacy of the EIR’s environmental “baseline” for its analysis of potential special status species impacts and the adequacy of its analysis of alleged public safety/emergency evacuation impacts.
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Continue Reading First District Rejects CEQA Challenges To EIR For Petaluma River Apartment Project, Upholds Special Status Species Baseline And Public Safety/Emergency Access Impacts Analyses As Supported By Substantial Evidence