“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

In an opinion filed April 18, and belatedly ordered published on May 15, 2024, the Third District Court of Appeal reversed the trial court’s order discharging the peremptory writ of mandate that was issued following the Court of Appeal’s earlier direction in Save Our Capitol! v. Department of General Services (2023) 87 Cal.App.5th 655, 711 (a case previously analyzed in my blog posts of January 2, 2023, found here, and January 23, 2023, found here). This latest chapter in the CEQA litigation over California’s efforts to update its historic State Capitol Complex centers on the issue whether the trial court properly discharged the writ upon the Department of General Services (“DGS”) simply filing a return showing it had certified a revised EIR, or whether, in response to a petitioner’s objections to the return’s adequacy, DGS needed to further demonstrate that its revised EIR actually fixed the deficiencies identified in the appellate opinion.Continue Reading Third District Reverses Order Prematurely Discharging CEQA Writ for Failure to Address Objections That Certified Revised EIR Was Still Noncompliant, Holds Project Opponents Could Properly Opt to Raise Challenge Through Objections to Return Without Filing Separate Action

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

In a partially published (but mostly unpublished) opinion filed on March 7, 2024, the Fifth District Court of Appeal reversed the trial court’s judgment and writ-discharge order which had upheld Kern County’s most recently revised “streamlined permitting” ordinance for oil and gas wells and its associated CEQA review.  V Lions Farming, LLC v. County of Kern, et al. (California Independent Petroleum Association, et al., Real Parties) (2024) 100 Cal.App.5th 412.  The Court of Appeal instead directed entry of a judgment and writ setting aside the County’s revised ordinance and related certification of a revised supplemental recirculated EIR (SREIR) and addendum.  It held (in unpublished portions of its opinion) that the SREIR’s discussion of cancer risk from the potential drilling of multiple wells near a sensitive receptor was informationally deficient, and that the County also erred in analyzing the significance of lowering groundwater levels in wells by misconstruing CEQA to prohibit consideration of the social and economic impacts on disadvantaged communities in making that significance determination.  (These and other unpublished portions of the opinion will not be discussed in any further detail in this post.)Continue Reading Fifth District Clarifies That Agricultural Conservation Easements (ACE’s) Qualify As Legally Permissible “Compensatory Mitigation” For Agricultural-Land Conversion Impacts Under CEQA Despite Not Ensuring No Net Loss

In an important published opinion filed February 16, 2024, the Fourth District Court of Appeal (Div. 1) held the San Diego County Board of Supervisors committed a prejudicial abuse of discretion in granting project opponents’ appeals of the Planning Commission’s decision upholding County’s use of the CEQA Guidelines section 15183 exemption for a construction debris and inert materials recycling facility project.  Hilltop Group, Inc., et al v. County of San Diego, et al. (2024) 99 Cal.App.5th 890.  The decision is noteworthy not just as the newest in a series of recent published decisions explicating the application of this important CEQA exemption, but because it sides with and grants a writ remedy to a project developer plaintiff that ultimately prevailed in litigation alleging a lead agency overstepped its legal authority by ordering preparation of an unnecessary EIR for an exempt project.Continue Reading CEQA Remedies Go Both Ways:  Fourth District Reverses Judgment Upholding San Diego County Board’s Decision Granting Project Opponents’ Administrative Appeal, Holds Board Erred In Finding CEQA Guidelines Section 15183 Statutory Exemption Inapplicable And Ordering EIR Prepared for Exempt Industrial Project

In a published opinion filed on January 17, 2024, the Second District Court of Appeal (Div. 5) reversed a trial court judgment overturning a mitigated negative declaration (MND) and requiring an EIR for a 42-single family home project; instead, the Court of Appeal held the petitioners’ action should have been dismissed as time-barred and that the trial court erred in overruling the demurrers of respondent City of Los Angeles and the real party developers on statute of limitations grounds.  Delia Guerrero et al. v. City of Los Angeles (TTLE Los Angeles – El Sereno LLC et al, Real Parties in Interest) (2024) 98 Cal.App.5th 1087.Continue Reading Reversal of Misfortune: Second District Holds CEQA Action Challenging Los Angeles Housing Development Project Barred By Statute of Limitations, Reverses Trial Court Judgment Rejecting MND and Requiring EIR

In a 51-page published opinion filed January 5, 2024, and resolving consolidated appeals, the Third District Court of Appeal rejected baseline, piecemealing/segmentation, impact analysis, project description, alternatives analysis, and failure-to-recirculate challenges to the EIR for the Department of Water Resources’ (“DWR”) approval of amendments to long-term water supply contracts with local government agencies receiving water through the State Water Project (“SWP”).  The amendments extended the contracts, which were originally entered into in the 1960s for 75-year terms, so as to end in the year 2085, and made other amendments to their financial provisions.  In the course of affirming the trial court’s judgment upholding the EIR and contract amendments against CEQA, Delta Reform Act, public trust doctrine, and other challenges, the Court of Appeal applied numerous well-established CEQA principles in the enormously significant and complex context of continuing long-term SWP contracts.  Planning and Conservation League, et al v. Department of Water Resources, et al, etc. (2024) 98 Cal.App.5th 726 (Ct. App. Nos. C096304, C096316, C096384).Continue Reading Third District Rejects CEQA and Other Challenges to Department of Water Resources’ EIR for Amendments Extending Long-Term State Water Project Supply Contracts Through 2085

In a published opinion filed November 13, 2023, disposing of consolidated appeals, the Second District Court of Appeal (Div. 6) affirmed judgments denying writ petitions that sought to invalidate a Ventura County ordinance. The ordinance at issue created wildlife migration corridor overlay zones covering approximately 163,000 less-developed acres of the County, including 10,000 acres of classified mineral resources.  California Construction and Industrial Materials Association/Ventura County Coalition of Labor, Agriculture and Business v. County of Ventura (Los Padres Forestwatch, et al., Interveners and Respondents) (2023) 97 Cal.App.5th 1. As did the trial court, the Court of Appeal rejected the arguments of appellants – which were coalition groups representing construction, industry, labor, agriculture and business interests – that County’s adoption of the ordinance violated requirements of the Surface Mining and Reclamation Act of 1975 (“SMARA”) and CEQA.Continue Reading Second District Holds Ventura County’s Adoption of Ordinance Creating Wildlife Migration Corridor Overlay Zones In County’s Rural Areas Did Not Violate SMARA And Was Properly Determined Categorically Exempt From CEQA

On October 20, 223, the First District Court of Appeal (Div. 3) filed an “Order Modifying Opinion; and Denying Petitions for Rehearing and Publication [No Change in Judgment]” in Yerba Buena Neighborhood Consortium, LLC, et al. v. The Regents of the University of California (2023) 95 Cal.App.5th 779, litigation that I analyzed in my 10/10/23 post here.  The Order denied petitions for rehearing, denied the California Building Industry Association’s request to publish unpublished portions of the Opinion, and slightly modified the lengthy opinion to add a single footnote and revise one sentence.  The Court of Appeal’s docket also reflects that petitions for review have been filed in the case and those may not be acted on by the Supreme Court until around the end of the year.Continue Reading First District Denies Rehearing and Publication Requests, Slightly Modifies Opinion With No Change in Judgment in CEQA Case Upholding U.C. Regents’ EIR for Parnassus Heights Campus Long-Range Development Plan; Petitions For Review Filed

In an opinion originally filed on September 8, and subsequently modified and certified for partial publication on October 4, 2023, the Sixth District Court of Appeal reversed the trial court’s judgment granting a writ setting aside Monterey County’s issuance of a permit to investor-owned public utility/water supplier California-American Water Company (“Cal-Am”) to construct a desalination plant and related facilities needed as one component of Cal-Am’s Water Supply Project.  Marina Coast Water District v. County of Monterey (California-American Water Company, Real Party in Interest) (2023) 96 Cal.App.5th 46.  On Cal-Am’s appeal, the Court held the trial court erred in finding the County’s statement of overriding considerations prejudicially inadequate for not addressing the uncertainty created by the City of Marina’s (“City”) denial of a coastal development permit (“CDP”) – later granted with conditions by the Coastal Commission on appeal – for the drilling of intake wells in coastal zone aquifers to supply the plant.  On project opponent Marina Coast Water District’s (“MCWD”) cross-appeal, the Court held that County’s decision not to require a subsequent EIR and its statement of overriding considerations were both supported by substantial evidence and (in an unpublished portion of its opinion not further discussed here) that County’s approval did not violate its own general plan.Continue Reading Sixth District Reverses Writ, Upholds Responsible Agency Monterey County’s Approval of Desalination Plant In Reliance on CPUC’s EIR For Multi-Component, Cross-Jurisdictional Water Supply Project; Court Rejects CEQA Challenges Based On County’s Decision Not to Prepare Subsequent EIR and Allegedly Inadequate Statement of Overriding Considerations