In a concise 15-page opinion filed August 7, 2014, the California Supreme Court reversed the Fifth District Court of Appeal’s judgment which had held that a city may not adopt a voter-sponsored initiative with potential environmental impacts unless it conducts a CEQA analysis. Tuolumne Jobs & Small Business Alliance v. The Superior Court of Tuolumne County (Wal-Mart Stores, Inc., et al., Real Parties In Interest (2014) 59 Cal.4th 1029, Case No. S207173. (For relevant case background, my initial post analyzing, criticizing, and predicting that the Supreme Court would grant review of the Fifth District’s decision can be accessed at the following link: “Impossible and Useless CEQA Review Is Required If City Opts Under Elections Code to Adopt Legislative Project Approvals Proposed by Qualified Citizen Initiative Petition – Fifth District’s Holding In Walmart Rejects Fourth District Precedent And Creates Split In Authority,” by Arthur F. Coon, posted November 8, 2012.)
Continue Reading California Supreme Court Holds CEQA Inapplicable To City’s Adoption Of Qualified Voter Initiative Approving Wal-Mart “Supercenter” Project
Litigation
Kern County’s CEQA Mitigation Measure For Wind Farm Project Relying On FAA Review and Determination of Aviation Safety Impacts Is Legally Feasible, Holds Fifth District
By Arthur F. Coon on
Posted in Litigation, Mitigation
Alleged land use conflicts between newly proposed land uses and existing nearby airports are nothing new, and can produce heated CEQA battles as project opponents often raise “life safety” issues as potential project impacts. This scenario was exemplified in a recent Fifth District Court of Appeal decision, which it ordered certified for partial publication after it was initially filed on June 30, 2014 as an unpublished opinion. Citizens Opposing a Dangerous Environment v. County of Kern, et al. (North Sky River Energy, LLC, Jawbone Wind Energy, LLC, et al., Real Parties in Interest) (5th Dist. 2014), 228 Cal.App.4th 360. The Court of Appeal affirmed the trial court’s judgment denying a petition for writ of mandate and upholding the adequacy of Kern County’s EIR and its project approvals (rezoning and a CUP) for a 339-megawatt, 116 wind turbine generator (“WTG”) wind farm project (the “Project”) to be constructed near a private (and apparently unpermitted) airport (the Kelso Valley Airport, or “KVA”) in the Tehachapi Wind Resource Area.
Continue Reading Kern County’s CEQA Mitigation Measure For Wind Farm Project Relying On FAA Review and Determination of Aviation Safety Impacts Is Legally Feasible, Holds Fifth District
Estopping the “Revolving Door” CEQA/Land Use Plaintiff: Roberson v. City of Rialto Holds Different Plaintiffs Litigating To Vindicate Same Public Interests Are Still In Privity6
By Arthur F. Coon on
In a decision ordered published on June 17, 2014, nearly a month after it was originally filed, the Fourth District Court of Appeal addressed a key element of the related doctrines of res judicata and collateral estoppel – the concept of “privity.” (Roberson v. City of Rialto (Wal-Mart Real Estate Business Trust, et al., Real Parties In Interest) (4th Dist. 2014) 226 Cal.App.4th 1499.) The Court did so in a manner that could prove very useful to public agencies and project proponents defending actions brought by ostensibly distinct CEQA/land use plaintiffs who are actually seeking to serially re-litigate claims or issues brought in the “public interest” that have previously been finally adjudicated.
Continue Reading Estopping the “Revolving Door” CEQA/Land Use Plaintiff: Roberson v. City of Rialto Holds Different Plaintiffs Litigating To Vindicate Same Public Interests Are Still In Privity6
Of High Speed Rails and Litigation Snails: The Train Rolls On As Third District Rejects Additional CEQA Challenges To High-Speed Rail Authority’s Revised Final Program EIR Analyzing Central Valley To San Francisco Bay Area Track Route
By Arthur F. Coon on
While CEQA actions are statutorily designed as special proceedings with priority over other civil actions, and thus mandated to be heard and resolved expeditiously, when complex or controversial projects with dedicated opposition are involved this salutary statutory scheme sometimes goes off track. A prominent example is the ongoing CEQA challenge to the environmental review for the Central Valley to San Francisco route of the High-Speed Rail Project, which involves lawsuits that have stretched over parts of 7 years and are not yet concluded — although a recent appellate decision appears to have brought them a step closer to the driving of the final CEQA litigation spike.
Continue Reading Of High Speed Rails and Litigation Snails: The Train Rolls On As Third District Rejects Additional CEQA Challenges To High-Speed Rail Authority’s Revised Final Program EIR Analyzing Central Valley To San Francisco Bay Area Track Route
Eight Is Not Enough: CEQA Challenge To Eighth Addendum To San Jose International Airport Master Plan EIR Is Rejected By Sixth District, Which Holds Plan Modifications To Accommodate Projected Decreases In Air Cargo and General Aviation Are Not “New Project” Requiring Supplemental or Subsequent EIR
By Arthur F. Coon on
In a decision filed June 6, but not certified for publication until July 2, 2014, the Sixth District Court of Appeal affirmed the trial court’s judgment upholding the City of San Jose’s eighth addendum to its Airport Master Plan against plaintiff Citizens Against Airport Pollution’s (CAAP) CEQA challenge. Citizens Against Airport Pollution v. City of San Jose, et al., 227 Cal.App.4th 788 (6th Dist. 2014).
Continue Reading Eight Is Not Enough: CEQA Challenge To Eighth Addendum To San Jose International Airport Master Plan EIR Is Rejected By Sixth District, Which Holds Plan Modifications To Accommodate Projected Decreases In Air Cargo and General Aviation Are Not “New Project” Requiring Supplemental or Subsequent EIR
Whatever the EIR’s Name, CEQA’s Rules For Substantive Content and Subsequent Review Remain The Same: First District Upholds EIR for Treasure Island Redevelopment Project
By Arthur F. Coon on
On July 7, 2014, the First District Court of Appeal filed its published opinion affirming the trial court’s judgment upholding the EIR for the Treasure Island/Yerba Buena Island Project. Citizens for a Sustainable Treasure Island v. City and County of San Francisco, et al. (Treasure Island Community Development LLC, RPI), 227 Cal.App. 4th 1036 (1st Dist. 2014).
Continue Reading Whatever the EIR’s Name, CEQA’s Rules For Substantive Content and Subsequent Review Remain The Same: First District Upholds EIR for Treasure Island Redevelopment Project
Fifth District Upholds CEQA Exemptions For Ongoing Pre-CEQA Projects And Continued Operation of Existing Facilities To Reject Challenge To Two-Year Interim CVP Water Contract Renewals
By Arthur F. Coon on
In a July 3, 2014 published decision more notable for the practical importance of the water rights involved than the CEQA law applied, the Fifth District Court of Appeal rejected the CEQA challenges of various environmental groups and a tribe. North Coast Rivers Alliance, et al., v. Westlands Water District, et al., 227 Cal.App.4th 832 (5th Dist. 2014). The lawsuit sought to overturn statutory and categorical exemptions claimed for six 2-year interim renewal contracts between the U.S. Bureau of Reclamation (USBR) and several water districts (i.e., Westlands Water District and its related distribution districts) for Central Valley Project (CVP) water to be delivered, received and distributed within the district’s 600,000+ -acre boundaries.
Continue Reading Fifth District Upholds CEQA Exemptions For Ongoing Pre-CEQA Projects And Continued Operation of Existing Facilities To Reject Challenge To Two-Year Interim CVP Water Contract Renewals
Supreme Court’s CEQA Docket Expands With Grant of Review in Newhall Ranch Case
By Arthur F. Coon on
On July 9, 2014, the California Supreme Court granted the petition for review filed by Plaintiff/Respondent Center for Biological Diversity (CBD) in Center for Biological Diversity, et al. v. Department of Fish and Game (Newhall Land Farming Company) (2d Dist. 2014) 224 Cal.App.4th 1105 (Supreme Ct., Case No. S217763). The new grant adds to the half dozen other CEQA cases in which the Supreme Court has granted review in the last few years.
Continue Reading Supreme Court’s CEQA Docket Expands With Grant of Review in Newhall Ranch Case
First District Applies CEQA Feasibility Analysis, Holds BCDC’s Rejection of Suisun Marsh Landfill Expansion Project Alternatives As Economically Infeasible Was Supported By Substantial Evidence
By Arthur F. Coon on
Posted in Alternatives, Litigation
In a decision filed April 29, and ordered published on May 28, 2014, the First District Court of Appeal reversed the trial court’s judgment granting a writ petition and upheld the decision of the San Francisco Bay Conservation and Development Commission (“BCDC”) permitting expansion of the Potrero Hills Landfill within the Secondary Management Area of the Suisun Marsh. SPRAWLDEF v. San Francisco Bay Conservation and Development Commission (Waste Connections, Inc., RPI) (1st Dist., Div. 1, 2014) 226 Cal.App. 4th 905.
Continue Reading First District Applies CEQA Feasibility Analysis, Holds BCDC’s Rejection of Suisun Marsh Landfill Expansion Project Alternatives As Economically Infeasible Was Supported By Substantial Evidence
First District Holds CEQA Statute Of Limitations Bars Citizens Group’s Challenge To College Of San Mateo Tree Cutting
By Arthur F. Coon on
In a published opinion, the First District Court of Appeal reversed the trial court’s judgment granting a writ and held that a CEQA action filed by a citizens group against a community college district and its board of trustees was time-barred under either the 30- or 180-day statute of limitations contained in Public Resources Code § 21167. Citizens for a Green San Mateo v. San Mateo County Community College District, et al. (1st Dist. 6/17/2014) 226 Cal.App.4th 1572.
Continue Reading First District Holds CEQA Statute Of Limitations Bars Citizens Group’s Challenge To College Of San Mateo Tree Cutting