On May 27, 2015, the California Supreme Court filed a 4-page order modifying portions of the majority and concurring opinions previously filed March 2, 2015, in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086. The modifications, made to the majority opinion at pages 1098-1099, 1102, and to the concurring opinion at page 1130, soften the majority’s comparison between (1) the unsuccessful appellants’ position on operation of the unusual circumstances exception to categorical exemptions, and (2) the operation of CEQA’s co-called “common sense” exemption embodied in Guidelines § 15061(b)(3).
Continue Reading CEQA Categorical Exemption Case Opinion Ordered Slightly Modified By Supreme Court; Berkeley Hillside Preservation Judgment Is Unaffected
Litigation
Fourth District Holds CEQA Does Not Require City To Predict ESHA Determinations In Approving Project Over Which Coastal Commission Retains Permitting Jurisdiction, And Applies Deferential Standard In Reversing Trial Court’s General Plan Inconsistency Finding
By Arthur F. Coon on
In a published opinion filed May 20, 2015, the Fourth District Court of Appeal reversed the trial court’s judgment granting mandate relief based on a general plan violation, affirmed its denial of relief under CEQA, and thereby upheld the City of Newport Beach’s approval of a mixed-use development within the coastal zone on the 400-acre Banning Ranch property. Banning Ranch Conservancy v. City of Newport Beach (Newport Banning Ranch LLC, et al., Real Parties in Interest) (4th Dist., Div. 3, 2015) 236 Cal.App.4th 1341.
Continue Reading Fourth District Holds CEQA Does Not Require City To Predict ESHA Determinations In Approving Project Over Which Coastal Commission Retains Permitting Jurisdiction, And Applies Deferential Standard In Reversing Trial Court’s General Plan Inconsistency Finding
Sixth District Applies CEQA’s “Fair Argument” Standard, Holds That Despite Project’s Compliance With Local Noise Ordinance, EIR Rather Than Mitigated Negative Declaration Is Required Based On Factual, Non-Expert Evidence Of Noise And Traffic Safety Impacts
By Arthur F. Coon on
On May 7, 2015, the Sixth District Court of Appeal filed a published opinion addressing numerous issues of interest under CEQA’s “fair argument” test for preparing an Environmental Impact Report (“EIR”). Keep Our Mountains Quiet v. County of Santa Clara (Candice Clark Wozniak, as Trustee, Real Party in Interest) (6th Dist. 2015) 236 Cal.App.4th 714.
Continue Reading Sixth District Applies CEQA’s “Fair Argument” Standard, Holds That Despite Project’s Compliance With Local Noise Ordinance, EIR Rather Than Mitigated Negative Declaration Is Required Based On Factual, Non-Expert Evidence Of Noise And Traffic Safety Impacts
Winners Beware – Fourth District Upholds Trial Court’s Discretion To Drastically Reduce Successful CEQA Plaintiff’s Fees In Granting CCP §1021.5 “Private Attorney General” Award
By Arthur F. Coon on
In an opinion filed March 18 and belatedly ordered published on April 13, 2015, the Fourth District Court of Appeal upheld a trial court’s discretion to award only $19,176 in attorneys’ fees under Code of Civil Procedure § 1021.5 to a successful CEQA plaintiff (SOURCE) who sought $221,198 based on a $110,599 “lodestar” with a multiplier of two. Save Our Uniquely Rural Community Environment v. County of San Bernardino (Al-Nur Islamic Center, Real Party in Interest) (4th Dist., Div. 2, 2015) 235 Cal.App.4th 1179. SOURCE, an organization of individuals, had successfully challenged San Bernardino County’s mitigated negative declaration (MND) and conditional use permit (CUP) for real party in interest Al-Nur Islamic Center’s proposed 7,512-square foot Islamic community center and mosque to be located on a 1.54-acre parcel in a residential part of the unincorporated county. Rejecting 5 of its 6 CEQA arguments, the trial court granted SOURCE’s writ petition on the sole ground that county failed to properly analyze the project’s environmental impacts from wastewater disposal, and ordered county to adequately analyze such impacts under CEQA.
Continue Reading Winners Beware – Fourth District Upholds Trial Court’s Discretion To Drastically Reduce Successful CEQA Plaintiff’s Fees In Granting CCP §1021.5 “Private Attorney General” Award
Second District Holds First Tier CEQA Analysis Suffices For Regional Board’s Setting of Novel TMDL For Lake Bed Sediment
By Arthur F. Coon on
In a short published opinion, the Second District Court of Appeal rejected federal Clean Water Act, state Porter Cologne Water Quality Control Act, and CEQA challenges to a regional board’s Basin Plan Amendment establishing a total maximum daily load (TMDL) for lake bed sediment in a polluted terminal lake (McGrath Lake). Conway v. State Water Resources Control Board (3/30/15 2d Dist., Div. 6) 235 Cal.App.4th 671, 2d Civil No. B252688.
Continue Reading Second District Holds First Tier CEQA Analysis Suffices For Regional Board’s Setting of Novel TMDL For Lake Bed Sediment
Supreme Court Will Review CEQA Decision Invalidating SANDAG’s 2050 RTP
By Arthur F. Coon on
On March 11, 2015, the California Supreme Court granted the San Diego Association of Governments’ (SANDAG) petition for review of the Fourth District Court of Appeal’s decision in Cleveland National Forest Foundation v. San Diego Association of Governments (Case No. S223603). As reflected on the Supreme Court’s docket, the Order granting review limited the issues to be briefed and argued to the following: “Must the environmental impact report for a regional transportation plan include an analysis of the plan’s consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. 5-3-05 to comply with the California Environmental Quality Act …?” All seven justices voted to review this issue.
Continue Reading Supreme Court Will Review CEQA Decision Invalidating SANDAG’s 2050 RTP
California Supreme Court Construes CEQA’s “Unusual Circumstances” Exception to Categorical Exemptions in Berkeley Hillside Preservation v. City of Berkeley Decision
By Arthur F. Coon on
In a 46-page majority opinion written by Justice Chin and joined by four other justices, punctuated by an 18-page concurring opinion (by Justice Liu, joined by Justice Werdegar) which reads like a dissent, the California Supreme Court reversed the First District Court of Appeal’s judgment in Berkeley Hillside Preservation v. City of Berkeley (Case Nos. S201116, A131254) and remanded for further proceedings.
Continue Reading California Supreme Court Construes CEQA’s “Unusual Circumstances” Exception to Categorical Exemptions in Berkeley Hillside Preservation v. City of Berkeley Decision
CEQA Review of Sacramento Kings Downtown Arena Project Held Legally Adequate In Published Third District Opinion
By Arthur F. Coon on
In a published opinion filed February 18, 2015, the Third District Court of Appeal rejected all legal challenges to the City of Sacramento’s EIR and CEQA compliance for approval of its new downtown entertainment and sports center (ESC) which will serve as the Sacramento King’s new home arena. Saltonstall v. City of Sacramento (3d Dist. 2015) 234 Cal.App.4th 549. Key points of the Court’s decision, which affirmed the trial court’s judgment denying the writ sought by project opponents, include:
Continue Reading CEQA Review of Sacramento Kings Downtown Arena Project Held Legally Adequate In Published Third District Opinion
CEQA Roundup – Recent Developments
By Arthur F. Coon on
Numerous CEQA-related developments have recently been in the news. Some of possible interest include:
Continue Reading CEQA Roundup – Recent Developments
Third District Rejects CEQA Challenge To Program EIR For California Department of Fish and Wildlife’s Statewide Fish Hatchery/Stocking Enterprise
By Arthur F. Coon on
In a lengthy published decision filed February 10, 2015, and addressing consolidated appeals in three related actions, the Third District Court of Appeal affirmed the trial court’s judgment rejecting petitioner and appellant Center for Biological Diversity’s (CBD) CEQA challenge to the California Department of Fish and Wildlife’s (CDFW) Program EIR (PEIR) reviewing on a statewide basis environmental impacts of its statutorily mandated fish hatchery and stocking enterprise – an operation that has been ongoing for more than 100 years. Center for Biological Diversity v. Department of Fish and Wildlife (3d Dist. 2015) 234 Cal.App.4th 214. The case addresses a number of important CEQA issues, including the rules governing use of PEIRs, baseline setting, deferral of mitigation, and alternatives analysis. (The non-CEQA portions of the opinion, which are not summarized in detail herein, held three mitigation measures CDFW imposed on an urban fishing program and private stocking permits – and which detrimentally affected private fish farmers and vendors beyond CDFW’s internal management – were “underground regulations” improperly adopted without formal compliance with the Administrative Procedure Act.)
Continue Reading Third District Rejects CEQA Challenge To Program EIR For California Department of Fish and Wildlife’s Statewide Fish Hatchery/Stocking Enterprise