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Successfully navigating CEQA litigation has been compared to walking a tightrope – myriad issues challenging an EIR can be (and often are) raised, and a “misstep” as to even a single one typically results in the court’s issuance of a writ decertifying the entire EIR and vacating the project approvals pending future CEQA compliance.  Fortunately, however, CEQA litigation can also be like a funnel, with its beginning at the top and its end at the bottom:  while many issues and challenges to an agency’s EIR can initially be raised, their subsequent final adjudication on the merits through a limited peremptory writ of mandate – one granting in part and denying in part a writ petition – serves to progressively eliminate and narrow the issues at play in any future litigation.  This is a result of the doctrine of res judicata (or claim preclusion), and a textbook example of that doctrine’s application in the CEQA litigation context can be found in the Third District’s recent partially published opinion in Ione Valley Land, Air, and Water Defense Alliance, LLC v. County of Amador (Newman Minerals, LLC, et al., Real Parties in Interest) (2019) 33 Cal.App.5th 165.  (The opinion was filed February 26, but later modified and certified for partial publication on March 20, 2019.)
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On March 13, 2019, at the losing Petitioner/Appellant’s request, the California Supreme Court ordered depublication of the Sixth District’s partially published opinion in Alliance of Concerned Citizens Organized for Responsible Development v. City of San Juan Bautista (2018) 29 Cal.App.5th 424 (No. S253725); my December 3, 2018 post on the case can be found here.  Review of the decision was not sought or granted, so its result stands unaffected by the high court’s action.  The main takeaway from this decision was that the nature of a final judgment is determined by its substance and effect in resolving the claims raised in the action on their merits, rather than by any label the court attaches to it.  The grant of depublication means only that, subject to very limited exceptions, the opinion “must not be cited or relied on by a court or a party in any other action.”  (Cal. Rules of Ct., Rule 8.1115(a).)
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Spring now being practically “in the air,” a bit of CEQA “spring cleaning” seems appropriate – so here’s a brief look at the status of some significant CEQA-related cases that are now pending before our Supreme Court, or in which its review has been sought:
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On November 20, 2018, in response to a petition for review filed by the Target Superstore project’s opponent, plaintiff (and respondent on appeal) Citizens Coalition Los Angeles, the California Supreme Court denied review and ordered the Court of Appeal’s opinion depublished.  My September 7, 2018 blog post analyzing and critiquing the Court of Appeal’s decision, which was previously published at Citizens Coalition Los Angeles v. City of Los Angeles (2018) 26 Cal.App.5th 561, can be found here.
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Just a few updates/items of possible interest as we head toward the end of this short (but very cold and wet) month:

Regulatory Developments

The close of OPR’s public comment period on its Discussion Draft of the CEQA Climate Change Advisory is March 15, 2019, at 5:00 p.m.

OPR also released in late December 2018 its Technical Advisory on Evaluating Transportation Impacts Under CEQA, containing its technical recommendations on VMT assessment, thresholds of significance, and mitigation measures, as well as incorporating Guidelines changes and more recent feedback since release of the April 2018 technical advisory. Details on these and related developments can be found in OPR’s February 21, 2019 email and on its website.

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In a published opinion filed February 13, 2019, the Fourth District Court of Appeal (Division 3) reaffirmed the need for a CEQA litigant challenging a coastal development permit to appeal to the Coastal Commission before suing.  Fudge v. City of Laguna Beach (Hany Dimitry; Real Party in Interest) (2019) 32 Cal.App.5th 193.  The Court refused plaintiff’s invitation to make the simple complex, and followed published precedents requiring a plaintiff to exhaust the statutory administrative remedy of an appeal to the Commission to ripen a litigation challenge.
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In a partially published opinion filed January 30, 2019, the First District Court of Appeal (Div. 1) affirmed a judgment denying a writ petition challenging the City of Berkeley’s approval of use permits for three single-family homes on three contiguous hillside parcels.  The Court upheld the City’s use of the CEQA Guidelines § 15303(a) (Class 3) categorical exemption for new construction of small structures, including “up to three single-family residences” in “urbanized areas.”  Berkeley Hills Watershed Coalition v. City of Berkeley (Matthew Wadlund, et al., Real Parties in Interest) (2019) 31 Cal.App.5th 880.
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Most real estate developers would likely agree that, even when correctly applied and complied with, CEQA can be an onerous law which can significantly complicate, delay, increase the cost of, and in some cases (particularly where CEQA litigation is involved) even preclude projects.  But what recourse does a project applicant have under the law when CEQA is misapplied – and blatantly so – by a local agency which denies approval of a project that is clearly exempt from CEQA on the meritless basis that extensive (and expensive) CEQA review is required?  When the developer’s only recourse is time-consuming and expensive litigation to obtain a writ of mandate setting aside the agency’s illegal action subjecting the project to CEQA, can the developer who succeeds in obtaining the writ recover from the public agency compensation and damages resulting from the temporary “taking” of all reasonable economic use of its property?
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In an opinion filed December 27, 2018, and later ordered published on January 15, 2019, the Fourth District Court of Appeal (Div. 1) affirmed the trial court’s judgment rejecting CEQA and other challenges to the City of San Diego’s (City) approval of an amended and restated lease of City-owned land containing an oceanfront amusement park in its Mission Beach neighborhood (Belmont Park), which restated lease potentially extends the prior lease term for a significant period.  San Diegans For Open Government v. City of San Diego (Symphony Asset Pool XVI, LLC, Real Party in Interest) (2019) 31 Cal.App.5th 349.
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In an opinion filed December 18, 2018, and later ordered published on January 10, 2019, the First District Court of Appeal affirmed a judgment denying appellant citizen groups’ writ petition challenging the City of St. Helena’s approval of an 8-unit, multifamily housing project and related demolition and design review.  McCorkle Eastside Neighborhood Group, et al. v. City of St. Helena, et al. (2019) 31 Cal.App.5th 80.  The decision applied the basic principle that CEQA does not apply to ministerial project approvals, and further clarified that CEQA does not apply to “mixed” discretionary/ministerial approvals where the “discretionary component” does not give the agency the authority to mitigate environmental impacts.  It held that because the City’s discretion under its local design review ordinance does not extend to addressing environmental effects it does not implicate CEQA, and therefore the City’s reliance on the CEQA Guidelines’ Class 32 exemption was unnecessary.
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