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In a lengthy and scholastic published opinion filed May 27, 2014, the Fifth District Court of Appeal reversed and remanded the trial court’s decision, which had upheld the EIR and other approvals (including a General Plan Amendment, Specific Plan, rezoning, and Development Agreement) for the Friant Ranch project.  The proposed project was a master-planned senior community to be located on 942 acres of unirrigated grazing land adjacent to Friant near the San Joaquin River.  Sierra Club v. County of Fresno (5th Dist. 2014) __ Cal.App.4th __, 2014 WL 2199317.  The Court of Appeal rejected Plaintiffs’ and Appellants’ claims of General Plan inconsistency and inadequate hydrogeology and wastewater disposal analysis, but found the EIR’s air quality impacts analysis insufficient and its related mitigated measures vague, unenforceable and improperly deferred.  The lengthy opinion contains various holdings and analyses of interest to CEQA and land use practitioners and their clients; while few break truly new ground, many serve as helpful reminders, primers and interstitial analyses of settled principles.  Key takeaways in this regard include:
Continue Reading Fifth District Decides Significant CEQA Air Quality/Health Impact Analysis and Mitigation Issues In Sierra Club v. County of Fresno

On May 30, 2014, the Court of Appeal for the First Appellate District (Division 4) filed its order denying rehearing and granting the requests of real party in interest AT&T, Verizon, Remy Moose Manley and others to publish its April 30 opinion in San Francisco Beautiful, et al. v. City and County of San Francisco, et al. (AT&T California, RPI) (1st Dist. 2014) 226 Cal.App.4th 1012.  The case involved a challenge, by plaintiffs comprised of numerous citizens and neighborhood groups, to the City’s determination that AT&T’s “Lightspeed” project was categorically exempt from CEQA and therefore didn’t require an EIR.  The project involved installing 726 new utility cabinets – most to be 48” high, 51.7” wide, and 26” deep – at undetermined locations on public sidewalks throughout the City within 300 feet of existing cabinets, in order to upgrade broadband speed and capabilities using an expanded fiber-optic network.
Continue Reading San Francisco Beautiful CEQA Decision Interpreting Class 3 Categorical Exemption For Installation of Small Structures Is Ordered Published By First District

Earlier this month, I posted an entry regarding the latest legislative effort at meaningful CEQA reform.  See New CEQA Reform Bill (SB 1451) Proposes Positive Changes That Would Reduce “Late Hit” Document Dumps and Extend Indefinitely Current Standing Requirements For After-Formed Organization Plaintiffs, by Arthur F. Coon, posted May 1, 2014.  I was genuinely enthused about SB 1451’s content and its prospects, thoughts I shared at length with a Daily Journal reporter who contacted me shortly after my post in connection with a story she was writing on the proposed law.

Unfortunately, the prospect of meaningful legislative CEQA reform offered by SB 1451 was short-lived.  Less than a week after my post, the bill’s author, Senator Hill, requested cancellation of a May 6 hearing on the bill that had been set before the Senate Committee on the Judiciary.  My Daily Journal reporter contact tabled her story; for all intents and purposes, it appears that SB 1451 is “dead in the water.”  A contact in the environmental consulting industry relates that a trusted source has advised that political pressure from organized labor interests killed the bill.  This outcome is certainly not surprising, but it is nonetheless disappointing to proponents of meaningful and common-sense CEQA reform.Continue Reading CEQA “Late Hit” Reform Bill (SB 1451) Is Withdrawn By Author

It’s that time of year again – business mixers, the Giants in first place in the NL west, the school year winding down, the NBA and NHL playoffs in full swing, coastal whale migrations, California bursting with beautiful weather, flora and fauna … and, of course, the Spring CEQA roundup!  So here goes the latest potpourri of CEQA developments, big and small:

*           New Rules of Court address Environmental Leadership development project litigation.  On April 25, 2014, and as required by 2013 legislation (SB 743) the Judicial Council adopted new Rules of Court governing and aimed at significantly expediting litigation of CEQA challenges to a select class of “green” mega’ projects, i.e., those certified by the Governor as “environmental leadership development projects.”  The ambitious new rules, which seek to shave years off the litigation timeline for CEQA suits challenging such projects, will become effective July 1, 2014.  They consist of the adoption of Cal. Rules of Court, rules 3.1365, 3.2200, 3.2220-3.2237, 8.700-8.705; renumbering and amendment of rules 3.1366 and 3.1367 as rules 3.2206 and 3.2207; renumbering of rules 3.1365 and 3.1368 as rules 3.2205 and 3.2208; amendment of rule 8.104; and repeal of rule 8.497.Continue Reading Spring 2014 CEQA Roundup

A CEQA reform bill (SB 1451) introduced and authored by seven (7) Democrats (Senators Correa, Galgiani, Hill, Hueso, Roth, and Steinberg, and Assembly Member Mullin) would amend Public Resources Code § 21177 to heighten standing requirements for CEQA plaintiffs by requiring them to raise issues of alleged CEQA noncompliance much earlier in the administrative process to avoid forfeiting the right to later sue on such issues.
Continue Reading New CEQA Standing Reform Bill (SB 1451) Proposes Positive Changes That Would Reduce “Late Hit” Document Dumps And Extend Indefinitely Current Standing Requirements For After-Formed Organization Plaintiffs

On April 16, 2014, Miller Starr Regalia filed in the California Supreme Court a “neutral” amici brief – one in support of neither party – addressing the important “CEQA-in-reverse” issue presented in California Building Industry Association v. Bay Area Air Quality Management District, California Supreme Court, Case No. S213478.  The brief was filed on behalf of Amici Curiae League of California Cities and the Counties of Tulare, Kings, and Solano.  Cities and counties frequently serve as lead agencies with respect to proposed projects under CEQA.  The League and the three counties identified the question presented in the case as having statewide significance.

The Amici brief (authored by myself and Matt Henderson) can be accessed at the League of California Cities’ website here http://www.cacities.org/Resources-Documents/Member-Engagement/Professional-Departments/City-Attorneys/Request-Amicus-Support/Recent-Filings/Briefs-(1)/California-Building-Indusry-Assn-v-Bay-Area-Air-QuContinue Reading Miller Starr Regalia Files Neutral “CEQA-in-Reverse” Case Amici Brief in California Supreme Court on Behalf of League of California Cities and Several Counties

In a lengthy opinion filed February 28, 2014, and ordered partially published on April 1, 2014, the Third District Court of Appeal reversed the Yolo County Superior Court’s judgment denying a CEQA writ petition challenging the City of Woodland’s EIR and related approvals of a 234-acre regional shopping center development – requiring an annexation application, pre-zoning, and a general plan amendment – on undeveloped agricultural land at the City’s periphery.  California Clean Energy Committee v. City of Woodland, 225 Cal.App.4th 173, 2014, Case No. C072033 (3d Dist. 2/28/14; part. pub. order 4/1/14).  In reversing and remanding to the trial court to grant plaintiff California Clean Energy Committee’s requested writ, the opinion didn’t break any significant new legal ground.  However, it did serve up a few reminders to local agencies and project developers of some CEQA basics, and also to be careful in framing your CEQA findings.
Continue Reading Some CEQA Reminders From The Third District: Urban Decay Requires Actual Mitigation When Identified By EIR As A Significant Project Impact – And Be Careful What You Find

In an exceptionally thorough and well-reasoned opinion, the Third District Court of Appeal affirmed the trial court’s judgment denying a writ petition challenging respondent 14th District Agricultural Association’s (District) approval of a rodeo event to be held at the Santa Cruz County Fairground pursuant to the CEQA Guidelines’ Class 23 categorical exemption.  Citizens For Environmental Responsibility v. State of California ex rel 14th District Agricultural Association (3d Dist. 3/26/14) 224 Cal.App.4th 152, 17 Cal.Rptr.3d 8.  In doing so, the Court addressed and clarified important issues regarding (1) the scope of the Class 23 exemption for “normal operations of existing facilities for public gatherings” (14 Cal. Code Reg., § 15323), (2) when alleged “mitigation” measures disqualify a project from utilizing a categorical exemption, and (3) operation of the “unusual circumstances” exception to categorical exemptions.  (14 Cal. Code Reg., § 15300.2(c).)
Continue Reading Third District Construes CEQA Guidelines’ Class 23 Categorical Exemption And “Unusual Circumstances” Exception In Rejecting Challenge To Watsonville Rodeo Event

In a lengthy, mostly published opinion filed on March 20, 2014, the Second District Court of Appeal reversed the trial court’s judgment granting a writ of mandate, and upheld – as against state law challenges brought by a bevy of environmental plaintiffs  – the EIS/EIR (EIR) and related resources management/conservation plan approvals of the California Department of Fish and Wildlife (CDFW) and U.S. Army Corps of Engineers (ACE) for the 12,000 acre Newhall Ranch Specific Plan site.  Center for Biological Diversity, et al. v. Department of Fish and Wildlife (The Newhall Land and Farming Company, RPI) (2d Dist. 2014) 224 Cal.App.4th 1105, 169 Cal.Rptr.3d 413, No. B245131. Two decades into the planning process, the controversial Northwestern LA County project ultimately contemplates the massive development of five villages containing residential, mixed-use and non-residential land uses, with up to 21,308 dwelling units (and 57,903 residents), 629 acres of mixed use development, 67 acres of commercial uses, 249 acres of business park uses, and numerous other public and open space uses and amenities, to be built out over a 25 to 30 year period.  The land use approvals at issue in the case included a Resource Management and Development Plan, Spineflower Conservation Plan, associated Master Streambed Alteration Agreement, and related Incidental Take Permits (ITPs) issued by CDFW under the California Endangered Species Act (CESA).  The 5,828 page EIR focused on the resource management and conservation plans required to be in place prior to the residential and commercial construction components of the project.
Continue Reading Second District Addresses Interesting CEQA and CESA Species Mitigation Issues in Lengthy Partially Published Opinion Upholding Resource Management and Conservation Approvals for Newhall Ranch Project, but “Hides its Work” on Significant Greenhouse Gas Issues in Unpublished Portion

In a rare grant of review of an unpublished case, the California Supreme Court granted review on January 15, 2014 of the decision in Friends of the College at San Mateo Gardens v. San Mateo County Community College District (1st Dist., Div. 1, 9/26/13) to address the following issue presented by the District:  “If a lead agency approves modifications to a previously reviewed and approved project through an addendum, may a court disregard the substantial evidence underlying the agency’s decision to treat the proposed action as a change to a project rather than a new project, and go on to decide as a matter of law that the agency in fact approved a “new” project rather than a modification to a previously approved project, even though this “new project” test is nowhere described in CEQA or the [CEQA] Guidelines?”
Continue Reading CEQA’s Standards For Subsequent Review To Be Addressed By Supreme Court