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In the second of two published opinions filed May 10, 2016, the Fourth District Court of Appeal affirmed the trial court’s judgment upholding the lead agency designation and EIR for a controversial project proposing to pump 50,000 acre-feet annually for a 50-year period from an aquifer underlying Cadiz, Inc.’s Mojave Desert property in San Bernardino County.  Center For Biological Diversity, et al. v. County of San Bernardino, et al., (4th Dist., Div. 3, 2016) 247 Cal.App.4th 326, Case No. G051058.  (For my post covering the Court’s related published opinion, see “Fourth District Rejects CEQA Challenges To Large Mojave Desert Groundwater Pumping Project In Separate Published Opinions,” by Arthur F. Coon, posted May 11, 2016.)
Continue Reading Fourth District Upholds EIR For Cadiz Mojave Desert Groundwater Pumping Project Against Various CEQA Challenges

In orders issued May 11, 2016, one week after the May 4 oral argument and submission of the cause for decision, the California Supreme Court vacated the submission and ordered supplemental briefing in Friends of the Collage at San Mateo Gardens v. San Mateo County Community College District, Case No. S214061. 
Continue Reading The Plot Thickens: California Supreme Court Vacates Submission Of Just-Argued CEQA Subsequent Review Case, Orders Supplemental Briefing

In two opinions filed May 10, 2016 (one partially and the other fully published), the Fourth District Court of Appeal rejected a number of CEQA and other challenges to a project proposing to pump 50,000 acre-feet of groundwater per year for a 50-year period from a Mojave Desert aquifer in the County of San Bernardino (“Project”).  The Project – proposed by a “public-private partnership” between lead agency Santa Margarita Water District (“SMWG”) and the overlying landowner, Cadiz, Inc. (“Cadiz”) – seeks to beneficially use and prevent the loss of groundwater, some portion of which would otherwise drain to two dry lakes where it would evaporate or become unpotable brine.  The fresh water pumped from the aquifer would be conveyed through 43 miles of underground pipeline to the Colorado River Aqueduct, which would then transport it to supply a number of Southern California Water agencies and users.
Continue Reading Fourth District Rejects CEQA Challenges To Large Mojave Desert Groundwater Pumping Project In Separate Published Opinions

The California Supreme Court held a lively oral argument session this morning (May 4, 2016), at 9:00 a.m. in its San Francisco courtroom in the case of Friends of the College of San Mateo Gardens v. San Mateo Community College District (Case No. S214061), which was live streamed for “real time” viewing on the Court’s website.  This post attempts to convey a general sense of the Court’s questioning and counsel’s argument in the hour-long session; any mistakes in “translation” are mine, and I apologize for any such errors in advance.  (For my prior post briefly describing the case’s facts, legal issues and significance, see “Supreme Court Set to Hear Important CEQA Subsequent Review Case,” by Arthur F. Coon, posted April 26, 2016.)
Continue Reading “Hot Bench” For Advocates In Supreme Court CEQA Subsequent Review Case

On May 4, 2016, at 9 a.m. in its San Francisco courtroom, the California Supreme Court will hear oral arguments in yet another of the many significant CEQA cases it has tackled in recent years, this one presenting critically important issues involving the application of CEQA’s “subsequent review” rules.  The case – Friends of the College of San Mateo Gardens v. San Mateo Community College District (Case No. S214061) – raises issues regarding the appropriate standard of judicial review and degree of deference CEQA requires to be accorded to a lead agency’s environmental determinations when it approves changes to an already approved project that underwent full (and presumptively adequate) CEQA review in its original form.
Continue Reading Supreme Court Set To Hear Important CEQA Subsequent Review Case

In a published opinion filed March 25, 2016, the Fourth District Court of Appeal affirmed the trial court’s judgment denying a writ petition that challenged a 2013 ordinance of the City of Upland which expressly prohibited mobile marijuana dispensaries within the City. Union of Medical Marijuana Patients, Inc. v. City of Upland (4th Dist., Div. 1, 2016) 245 Cal.App.4th 1265, 2016 WL 1169302, Case No. D069293.  Because the ordinance merely restated a ban already in effect under an existing 2007 ordinance that was never challenged under CEQA, it lacked the potential to cause direct or reasonably foreseeable indirect physical changes in the environment and was therefore not a “project” subject to CEQA.
Continue Reading Fourth District Holds CEQA’s Definition of “Project” Does Not Encompass Municipal Ordinance Merely Restating Existing Prohibition of Mobile Marijuana Dispensaries

In a March 4, 2016 published opinion, the Fourth District Court of Appeal reversed the trial court’s judgment requiring an EIR for a small 12-home rural subdivision project based on the “psychological and social” impacts of the proponent’s related closure of a public horse boarding facility (the “Stock Farm”) which he had operated pursuant to a CUP for 20 years on the 11.6-acre property.  Preserve Poway v. City of Poway (Harry A. Rogers, et al., Real Parties in Interest) (2016) 245 Cal.App.4th 560, 2016 WL 891405.  In addition to its primary holding that psychological, social and economic impacts are not cognizable under CEQA, the Court rendered a few other interesting rulings, including its application of the Supreme Court’s recent “CEQA-in-reverse” decision (California Building Industry Ass. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369 (“CBIA”)) in holding that asserted impacts of an existing equestrian events facility (located across the street from the project) on future project residents were also beyond CEQA’s scope.
Continue Reading Horse Of A Different Color: CEQA Does Not Require EIR Due To Psychological And Social Impacts From Closure Of Beloved Equestrian Boarding Facility In Small “Country” City

In a published opinion filed January 26, 2016, the Court of Appeal for the Fourth Appellate District (Division 2) reversed a trial court’s order denying CEQA plaintiffs’ motion to amend judgments entered four (4) years earlier to add a previously unnamed corporate entity so that it would be liable on award of over $1 million in attorneys’ fees entered under CCP § 1021.5. Highland Springs Conference And Training Center v. City of Banning (SCC Acquisitions, Inc., et al., Real Parties in Interest) (4th Dist., Div. 2, 2016) 244 Cal.App.4th 267.
Continue Reading Motion to Amend CEQA Action Judgments to Make Additional Judgment Debtor Liable For Million Dollar Fee Award Not Barred By Plaintiffs’ Unreasonable Four-Year Delay Or Laches Absent New Party’s Showing Of Prejudice, Holds Fourth District

CEQA and land use law in California go together like a hand in a glove. Due to CEQA’s broad scope and exacting substantive and procedural requirements, it is relatively easy to plead a cause of action for CEQA violations in most instances where land use approvals or entitlements for a development project are challenged.  CEQA claims thus play a prominent, and often leading, role as petitioners’ litigation “weapon of choice” in most such land use disputes.
Continue Reading When CEQA Violations Are An Afterthought: Fourth District Upholds Trial Court’s Independent Judgment Determination That City Of Anaheim Is Equitably Estopped To Unilaterally Modify Resort Hotel CUP Conditions

In a lengthy opinion filed December 2, 2015, and belatedly ordered published on January 4, 2016, the Third District Court of Appeal invalidated the California Department of Food and Agriculture’s (CDFA) programmatic EIR for a seven-year program to eradicate an invasive pest – an Australian native insect known as the light brown apple moth (LBAM) – that threatens California’s native plants and agricultural crops. North Coast Rivers Alliance, et al. v. A.G. Kawamura/Our Children’s Earth Foundation, et al. v. California Department of Food and Agriculture (2015) 243 Cal.App.4th 647. It reversed the trial court’s judgments denying appellants’ mandate petitions and remanded with directions to grant them.
Continue Reading CDFA Program EIR Violates CEQA By Failing To Analyze Invasive Moth Control Program As Alternative To Eradication, Holds Third District