Litigation

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“… like all things in life, project plans are subject to change.”
(Slip Opn. of Kruger, J., p. 4.)

The California Supreme Court provided needed clarification to some aspects of the operation of CEQA’s “subsequent review” rules (Pub. Resources Code, § 21166; CEQA Guidelines, § 15162) in its highly anticipated opinion, filed on September 19, 2016, in Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2016) 1 Cal.5th 937.   CEQA’s subsequent review rules embody CEQA’s concerns for finality and efficiency, and implement a presumption against requiring a subsequent EIR for a modified project that has previously undergone CEQA review – i.e., they  govern whether an EIR will be required, or another type of CEQA document (or no further documentation) will suffice, when changes are proposed in a project for which an initial CEQA review has been completed.  (Slip Opn., p. 12.)  I won’t reiterate this case’s facts and relevant background history (including oral argument and post-argument briefing in the Supreme Court) which can be found (in reverse chronological order) in my prior blog posts of July 8, May 12, May 4, April 26, 2016, and March 25, 2014.  This post focuses on the legal rules and standards announced by the Court and their potentially significant implications for lead agencies and project proponents who consider approval of changes to a development project that has already undergone and survived a full CEQA review.Continue Reading Supreme Court Addresses CEQA Subsequent Review Rules in San Mateo Gardens Case

On September 9, 2016, the First District Court of Appeal (Division 5) filed an “Order Modifying Opinion and Denying Rehearing [No Change In Judgment]” in California Building Industry Association v. Bay Area Air Quality Management District, Case. Nos. A135335 & A136212.  My post on the Court of Appeal’s published opinion in the case, which was filed on August 12, 2015 following remand from a landmark Supreme Court decision holding that “CEQA does not generally require an agency to consider the effects of existing environmental conditions on a proposed project’s future users or residents” (California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, 392), can be found here. 
Continue Reading First District Modifies “Reverse CEQA” Case Opinion, Denies BAAQMD’s Petition For Rehearing With No Change In Judgment

About one year after being placed in the California Legislature’s “Inactive File,” SB 122 (concerning concurrent preparation of the CEQA administrative record and OPR electronic database) is back “off the shelf.”  The bill passed in the State Assembly yesterday, and will next be considered by the Senate for concurrence in the Assembly’s amendments.  It must be passed by both houses between now and the end of the month (if it is to be sent to Governor Brown for signature).

As originally proposed in early 2015, SB 122 contained only one detailed statutory provision – the addition of Public Resources Code § 21167.6.2 – which would create a detailed new alternative method for expedited preparation of the record of proceedings (i.e., the “administrative record”) in CEQA cases, at the election and expense of the applicant and with the consent of the public agency.  It also contained two “placeholder” sections declaring the Legislature’s intent to establish an electronic database clearinghouse of CEQA documents maintained by the State Office of Planning and Research (OPR) and to establish a public review period for Final EIRs.Continue Reading Statutory CEQA Reform Proposal (SB 122) Reemerges With Optional Expedited Record Preparation Provisions Unchanged; Fleshes Out OPR Electronic Database Placeholder; And Drops Controversial Effort To Provide Public Review Period for Final EIRs

In a published decision filed August 12, 2016, following remand from the California Supreme Court after its landmark “CEQA-in-reverse” decision, the First District Court of Appeal reversed the trial court’s judgment and remanded with directions to issue an order partially granting CBIA’s writ of mandate and to consider CBIA’s requests for declaratory relief and attorneys’ fees.  California Building Industry Association v. Bay Area Air Quality Management District (1st Dist., Div. 5, 2016) 2 Cal.App.5th 1067.
Continue Reading “CEQA-In-Reverse” Case on Remand: First District Holds BAAQMD’s 2010 Air Pollutant Thresholds Not Facially Invalid, But Can’t Be Used For Primarily Intended Purpose

A project that may cause a substantial adverse change in the significance of a “historical resource” may, for that reason, have a significant effect on the environment for purposes of CEQA. (Pub. Resources Code, § 21084.1.) And those familiar with CEQA know that, under its “fair argument” test, where there is any substantial evidence in the record that a project may have a significant effect on the environment, an EIR must be prepared. (§ 21080(d).) But just what is a “historical resource”? How is the determination of its historicity made, by whom, and by applying what standards to the relevant evidence? Those important questions are addressed by the August 12, 2016 published opinion of the Sixth Appellate District Court of Appeal in Friends of the Willow Glen Trestle v. City of San Jose (2016) 2 Cal.App.5th 457.
Continue Reading Sixth District Holds CEQA’s “Fair Argument” Test Inapplicable To City Of San Jose’s Discretionary Determination That 1922 Wooden Railroad Trestle Is Not Historical Resource

Following up on their 2015 report covering all CEQA lawsuits filed during the 2010-2012 period, Holland & Knight lawyers Jennifer Hernandez, David Friedman and Stephanie DeHerrera recently released a portion of the sequel – the 2013-2015 update – covering CEQA lawsuits targeting housing projects within the Southern California Association of Governments (SCAG) region. The document is entitled “In the Name of the Environment Update: CEQA Litigation Update For SCAG Region (2013-2015)” and can be found on Holland & Knight’s website at https://www.hklaw.com/publications/In-the-Name-of-the-Environment-Update-07-26-2016/. The accelerated release of findings for California’s most populous region – SCAG covers six counties and 191 cities – was prompted by Governor Brown’s controversial May 2016 proposal to require “by right” ministerial approvals of zoning-compliant multifamily infill projects meeting certain affordable housing and other criteria. (My post on the 2015 Holland & Knight study can be found here; my partner Bryan Wenter’s post on Governor Brown’s “by-right” proposal can be found here.)
Continue Reading Holland & Knight SCAG Update Report: CEQA Litigation Abuse Hurts Infill Housing

In the published part of a partially published opinion filed July 11, 2016, the Second Appellate District Court of Appeal held that Public Resources Code § 21168.9 does not authorize an appellate court to issue and supervise compliance with a writ of mandate on direct appeal, but, rather, such a matter must be remitted to the trial court with appropriate directions. Center for Biological Diversity v. Department of Fish and Wildlife (The Newhall Land and Farming Company, Real Party in Interest) (5th Dist., Div. 5, 2016) 1 Cal.App.5th 452, Case No. B245131.  The Court thus rejected the real party developer’s motion (on remand of the case from the Supreme Court) arguing that CEQA’s “general principle” of expediting litigation and specific language in its remedies statute (Pub. Resources Code, § 21168.9) authorized such action.
Continue Reading CEQA Remedies Statute Does Not Authorize Appellate Court To Issue Writ And Supervise Compliance On Direct Appeal, Holds Second District In Partially Published Decision On Remand In Newhall Ranch Case

As a brief follow up to my earlier posts of April 26, May 4, and May 12, 2016, it appears that supplemental and amicus briefing has ended and that the matter has now been submitted for decision in the important Supreme Court “subsequent review” case, Friends of the College of San Mateo Gardens v. San Mateo Community College District, Case No. S214061.
Continue Reading Supreme Court CEQA Subsequent Review Case Briefing Completed And Case Submitted (Apparently)

In a partially published opinion filed June 21, 2016, the Court of Appeal for the First Appellate District reversed in part the Mendocino County Superior Court’s judgment denying a writ petition challenging the City of Ukiah’s approvals of a Costco warehouse/gas station project on CEQA and zoning law grounds.  Ukiah Citizens for Safety First v. City of Ukiah (1st Dist., Div. 3, 2016) 248 Cal.App.4th 256.  The 10-page published portion of the Court’s 27-page opinion held the City’s EIR and project approvals must be set aside and the EIR’s energy analysis brought into compliance with CEQA; the remaining unpublished portion of the opinion (not discussed in detail in this post) agreed with and affirmed the trial court’s rulings that the EIR’s transportation/traffic and noise analyses were adequate and that the project was not inconsistent with applicable zoning requirements.
Continue Reading Deficient CEQA Guidelines Appendix F Energy Impacts Analysis Causes First District To Pull The Plug On Ukiah Costco Project EIR

In a decision filed May 25, and belatedly ordered published June 15, 2016, the Fourth District Court of Appeal affirmed and reversed in part a judgment of the San Bernardino County Superior Court.  It affirmed the judgment to the extent it held the Wal-Mart Tamarisk Marketplace Project (Project) EIR inadequately analyzed the Project’s GHG emissions and that the Project was inconsistent with the City of Victorville’s (City) General Plan; it reversed to the extent the judgment failed to also find that City violated CEQA by not recirculating the EIR and violated the Subdivision Map Act (Map Act) by failing to make all findings required by Government Code § 66474.  (Spring Valley Lake Association v. City of Victorville (Wal-Mart Stores, Inc., Real Party in Interest) (4th Dist., Div. 1) 248 Cal.App.4th 91.)

Continue Reading Fourth District Holds Wal-Mart Victorville Project EIR Violates CEQA; Project Approval Findings Violate Map Act; And Project Is Inconsistent With General Plan