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In a published decision filed October 31, 2014 (Paulek v. California Department of Water Resources (4th Dist., Div. 2, 2014) 231 Cal.App.4th 35, Case No. E060038), the Fourth District Court of Appeal affirmed the Riverside County Superior Court’s judgment denying a petition for a writ of mandate challenging an EIR for the Perris Dam Remediation Project.  The Department of Water Resources’ (“DWR”) DEIR proposed three activities:  (1) remediating the dam’s structural seismic deficiencies; (2) replacing its outlet tower; and (3) creating a new “Emergency Outlet Extension.”  The FEIR addressed a modified project including only the first two components and splitting the emergency outlet extension into a separate project and environmental review process.
Continue Reading Fourth District Addresses CEQA Issues Concerning Standing, Mitigation,Baseline, Piecemealing, And Responses To Comments In Affirming Judgment Upholding Perris Dam Remediation Program EIR

At long last, the California Supreme Court has scheduled oral argument in the case of Berkeley Hillside Preservation, et al. v. City of Berkeley, Supreme Court Case No. S201116.  By its long-awaited order issued October 31, 2014, the Court has now set argument in the matter for 9:00 a.m., December 2, 2014, in Los Angeles.
Continue Reading Supreme Court Finally Schedules Oral Argument In CEQA Categorical Exemption Case

On October 1, 2014, the California Supreme Court  granted the Real Party in Interest developer’s petition for review in Sierra Club v. County of Fresno (5th Dist. 2014) 226 Cal.App.4th 704, now unciteable and pending review as Supreme Court Case No. S219783.  The significant portions of the Court of Appeal’s decision were previously summarized in detail several months ago in this blog.  (See “Fifth District Decides Significant CEQA Air Quality/Health Impact Analysis and Mitigation Issues in the Sierra Club v. County of Fresno” by Arthur F. Coon, posted June 16, 2014.)
Continue Reading Supreme Court Adds Another CEQA Case To Its Docket, Will Review Fifth District’s Sierra Club v. County of Fresno (“Friant Ranch”) Decision

The North Coast Railroad Authority (NCRA), a public agency established by state law, contracted with Northwestern Pacific Railroad Company (NWPRC) to allow NWPRC to conduct freight services on tracks controlled by NCRA.  Petitioner groups Friends of The Eel River (FOER) and Californians for Alternatives to Toxics (CAT) filed mandate petitions under CEQA challenging NCRA’s EIR and approval of the operations.  In affirming the trial court’s judgment denying the petitions, the First District Court of Appeal – in addressing what it termed “an issue of first impression in California” — followed uniform Federal law in holding the Interstate Commerce Commission Termination Act (ICCTA; 49 U.S.C. § 10101 et. seq.) grants the Surface Transportation Board (STB) exclusive jurisdiction over rail operations and broadly exempts state and local laws that impose “permitting or preclearance requirements (including environmental requirements)” on railroad operations or activities.  Friends of the Eel River v. North Coast Railroad Authority (1st Dist., Div. 5, 2014) ___Cal.App.4th ___, 2014 WL 4809456 (opn. filed 9/29/14).  In so holding that the ICCTA preempted CEQA’s application to a project involving railroad operations and thus barred Petitioners’ actions, the Court rejected Petitioners’ arguments that NCRA and NWPRC were estopped to assert federal preemption as a defense by NCRA’s agreement to conduct CEQA review, their positions in prior proceedings, and/or NCRA’s (later-rescinded) certification of an EIR.
Continue Reading First District Holds CEQA’s Application To Public Agency’s Approval of Railroad Operations Is Preempted By Federal Law Despite Agency’s Agreement To Conduct CEQA Review And Preparation of EIR

In a partially-published opinion filed September 29, 2014, the Fourth District Court of Appeal affirmed an order and judgment permitting the County of San Diego to recover actual labor costs incurred for an attorney and paralegals to take over and complete preparation of an administrative record in a CEQA case where the petitioner had elected, but failed, to do so. The Otay Ranch, L.P. v. County of San Diego (2014) 230 Cal.App.4th 60, Case No. D064809.
Continue Reading Attorney Labor For Preparing CEQA Administrative Record Is Recoverable Cost Where Specialized Knowledge Required, Holds Fourth District in Partially Published Opinion

In a published decision filed September 24, 2014, the Third District Court of Appeal (per Justice Robie) held that CEQA’s definition of a “public agency” that is subject to its requirements (see Pub. Resources Code, § 21063) applies only to governmental bodies, not individuals.  Governor Brown was therefore not subject to CEQA compliance as a prerequisite to his concurrence in the Secretary of the Interior’s (“Secretary”) federal determination made under the Indian Gaming Regulatory Act (“Indian Gaming Act”; 25 U.S.C. § 2701 et seq.) that a new Indian gaming establishment in Madera County would not be detrimental to the surrounding community.  Picayune Rancheria of Chukchansi Indians v. Edmund G. Brown, Jr. (NP Fresno Land Acquisitions LLC, RPI) (3d Dist. 2014) 229 Cal.App.4th 1416, No. C074506.
Continue Reading Governor Brown Is Not CEQA “Public Agency,” Holds Third District In Indian Casino Case

In a published decision filed September 15, 2014, the First District Court of Appeal reversed and remanded a trial court’s post-judgment order granting an unsuccessful CEQA petitioner’s motion to tax the entire $64,144 cost bill of respondent City.  Coalition for Adequate Review v. City and County of San Francisco (1st Dist. 2014) 229 Cal.App.4th 1043, Case No. A135512.
Continue Reading CEQA Administrative Record Preparation Costs – Who Pays and When? First District Provides Guidance In Coalition For Adequate Review v. City and County of San Francisco

In a lengthy published decision filed September 9, 2014, the Third District Court of Appeal affirmed in part and reversed in part the trial court’s judgment denying a writ petition challenging Colusa County’s adoption of a Mitigated Negative Declaration (MND).  The project approved was a subdivision of four adjacent parcels, comprising 159 acres of industrially-zoned land near I-5, into 16 parcels ranging from just over one to 31 acres each.  Rominger v. County of Colusa (Adams Group Inc., Real Party in Interest) (3d Dist. 2014) 229 Cal.App.4th 690, Case No. C073815.  Key holdings and “takeaways” from the 48-page opinion, which was authored by noted CEQA jurist Justice Ronald Robie, included:
Continue Reading Tentative Map Approval Is CEQA “Project”, Holds Third District In Published Opinion Also Addressing Prejudicial Error, Agency Discretion To Adopt Thresholds Of Significance, Deferred Mitigation, And Other Significant CEQA Issues

In a published opinion filed August 29, 2014, the Fifth District Court of Appeal affirmed a judgment granting a writ of mandate and finding that the City of Fresno erred in approving a mitigated negative declaration (MND) for an infill project involving the demolition of two houses and construction of 14 duplexes on a 1.29-acre lot in downtown Fresno.  Citizens for the Restoration of L Street v. City of Fresno (FFDA Properties, LLC, et al., Real Parties in Interest) (5th Dist. 2014) 229 Cal.App.4th 340, Case No. F066498.  In resolving the cross-appeals before it, the Court of Appeal agreed with the trial court in holding that:  (1) the City violated CEQA’s procedural requirements by allowing – as required by its Municipal Code – its Historic Preservation Commission (HPC) to act as its decisionmaking body in approving the demolition permit for the project while not concurrently delegating CEQA review authority to that body; and (2) the City properly applied the “substantial evidence” – rather than the “fair argument” – standard of review in determining that the demolished houses were not “historical resources” and therefore not part of the “environment” protected by CEQA.
Continue Reading Fifth District Reaffirms Its CEQA Historicity Rules in Citizens for the Restoration of L Street v. City of Fresno

In a lengthy, mostly-unpublished opinion filed on August 14, 2014, the First District Court of Appeal affirmed the superior court’s judgment denying a writ petition challenging the Parkmerced Development Project.  San Francisco Tomorrow, et al. v. City and County of San Francisco, et al. (Parkmerced Investors Properties, LLC, Real Parties in Interest) (1st Dist., Div. 2, 2014) 229 Cal.App.4th 498.  A 50-page portion of the 75-page opinion, which contained the court’s detailed analysis and rejection of appellant San Francisco Tomorrow’s (“SFT”) numerous general plan inconsistency and CEQA claims, was not certified for publication.  The court did certify for publication those portions of its decision:  (1) analyzing and rejecting SFT’s direct challenges to the legal adequacy of City’s general plan; (2) holding the trial court did not err in sustaining a demurrer to SFT’s procedural due process cause of action challenging the project’s development agreement; and (3) holding the trial court did not err in including in the administrative record hearing transcripts of public meetings of the Board’s Land Use and Economic Development Committee (“LUEDC”) at which the project was considered and discussed.
Continue Reading Parkmerced Project Upheld Against CEQA and General Plan Inconsistency Challenges In San Francisco Tomorrow v. City and County of San Francisco