Litigation

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In a published opinion filed October 21, 2024, the Second District Court of Appeal (Div. 7) reversed a judgment entered after the trial court granted without leave a real party developer’s motion for judgment on the pleadings, based on statute of limitations grounds, in a writ of mandate action alleging CEQA and Planning and Zoning Law causes of action and challenging the permit and vesting tentative map approvals for a residential subdivision project.  Santa Clarita Organization for Planning the Environment et al v. County of Los Angeles (Williams Homes, Inc., Real Party in Interest) (2024) 105 Cal.App.5th 1143.  The Court held that judgment on the pleadings was improper as to the CEQA claim because Government Code section 66499.37, the Subdivision Map Act’s (SMA) statute of limitations requiring filing and service of summons within 90 days in subdivision-related actions, could not completely dispose of that cause of action.  The Court reasoned this was so because most of the claims alleged in that cause of action were “procedural violations” and other claims “unique to CEQA” that could not have been brought under the SMA.  The Second District’s opinion is poorly reasoned and concerning because it appears to diverge from the statute’s plain language, as well as from prior caselaw construing it to have an extremely broad application to any subdivision-related action, and to read into it a new and significant limitation on its reach, essentially making it applicable only to actions attacking a subdivision decision based on legal theories that are or could be brought under the SMA.Continue Reading In Writ Action Attacking Vesting Tentative Map Approval, Second District Holds Plaintiffs’ Failure to Comply With Subdivision Map Act Statute of Limitations’90-Day Service-Of-Summons Requirement Does Not Bar Major “Portion” of CEQA Cause of Action Alleging “Procedural Violations Unique to CEQA” And Other Claims That Could Not Be Brought Under Map Act

Lawyers, like all humans, experience the full gamut of life’s difficulties.  Sometimes those intrude into the practice of law itself, up to and including CEQA litigation.  On September 26, 2024, the First District Court of Appeal filed its published its opinion in Friends of the South Fork Gualala v. Department of Forestry and Fire Protection (2024) 105 Cal.App.5th 517, a case dealing with such an unfortunate circumstance, in which the Court had to address the conflicting needs of a lawyer confronting a serious mental illness, the needs of the litigants, and the needs of the functioning of the trial court.  Despite its tangential relationship to the substantive or procedural provisions of CEQA, the case is worth reviewing for the guidance it provides practitioners and litigants dealing with such a scenario in the context of a writ proceeding entitled to calendar preference under CEQA. Continue Reading Delay Denied: First District Affirms Trial Court’s Denial of Seventh ADA Continuance Request Made In CEQA Case Under California Rules of Court, Rule 1.100, Due To Burden On Trial Court’s Docket Management And Excessive Delay Contrary To Fundamental Nature of Expedited CEQA Proceeding

Litigation abuse is all too familiar to those engaged in the herculean task of getting new development approved in California.  See, for instance, Jennifer Hernandez’s 2022 report for the Center for Jobs & the Economy, titled “Anti-Housing CEQA Lawsuits Filed in 2020 Challenge Nearly 50% of California’s 100,000 Annual Housing Production” and blogged on here.  Or a 2022 case out of the First District, Tiburon Open Space Committee v. County of Marin (2022) 78 Cal.App.5th 700 (blogged on here), in which the court lamented the fact that CEQA can “be manipulated to be a formidable tool of obstruction” and concluded with the rather dire observation that “[s]omething is very wrong with this picture.” Continue Reading Ninth Circuit Squashes RICO Lawsuit Seeking Federal Remedy For Abusive and Extortionate CEQA Litigation

“Do not go gentle into that good night.  Rage, rage against the dying of the light.”

– Dylan Thomas

In a published decision filed October 7, 2024, the Third District Court of Appeal affirmed the trial court’s judgment rejecting a CEQA challenge to the revised EIR for the State Capitol renovation project based on recent legislation exempting that project from CEQA.  Save Our Capitol! v. Department of General Services (Joint Committee on Rules of the California State Senate and Assembly) (2024) 101 Cal.App.5th 1237.  This was the Court’s third published appellate decision in the CEQA litigation over the controversial project; see my posts dated January 2 and January 23, 2023 and May 23, 2024, covering the Court’s initial two published decisions finding flaws in the project EIR, and in the trial court’s premature discharge of the remedial writ, and my post dated July 11, 2024 covering the dispositive statutory CEQA exemption enacted through SB 174.Continue Reading Third Time’s the Charm: Third District Crowns State the Winner By Legislative Decree In Third Published CEQA Decision Arising From Capitol Renovation Project

In a terse opinion filed September 13, and modified and ordered partially published on October 3, 2024, the Third District Court of Appeal upheld an award of reasonable record preparation cots to prevailing lead agency County of Yolo (County) in a CEQA action unsuccessfully challenging a sand and gravel mining permit and reclamation plan (project).  Yolo Land and Water Defense, et al v. County of Yolo, et al (Teichert, Inc., Real Party in Interest) (2024) 105 Cal.App.5th 710.Continue Reading Third District Holds That Lead Agency Prevailing In CEQA Action Can Recover Reasonable Record Preparation Costs Despite Petitioner’s Election to Prepare Record

In an opinion filed August 27 and later ordered published on September 24, 2024, the Fifth District Court of Appeal affirmed a judgment denying a writ petition that challenged the State Air Resources Board’s (CARB) adoption of the Advanced Clean Trucks Regulation (Regulation) on CEQA and Administrative Procedures Act (APA; Gov. Code, § 11340 et seq) grounds.  California Natural Gas Vehicle Coalition v. State Air Resources Board (2024) 105 Cal.App.5th 304.  The Court held that CARB’s in-depth study of three alternatives (including the “no project” alternative) constituted a reasonable range for CEQA purposes; it further held that CARB’s alternative analysis wasn’t deficient for rejecting without in-depth study, as infeasible for policy reasons, an alternative proposed by opponents of the Regulation that would have applied a low-NOx vehicle credit to sales mandates applicable to zero-emission vehicles (ZEV).  Based on the same reasoning, the Court held CARB also need not have considered the now-NOx vehicle credit as a mitigation measure for the acknowledged significant near-term air quality impacts of the Regulation.  (The Court also rejected appellant Coalition’s APA arguments in a portion of its opinion that won’t be further discussed in this post.)  Finally, the Court held on CARB’s affirmative appeal that any error with respect to the admission of a specific “white paper” document into the administrative record was nonprejudicial, and therefore harmless, as it did not impact either the trial court’s or its own analysis.Continue Reading Fifth District Affirms Judgment Rejecting CEQA/APA Challenges to CARB’s Approval of ZEV Truck Sales Mandate Regulation; Holds Alternatives and Mitigation Analyses Need Not Include Low-NOx Vehicle Credit Contrary to Project’s Underlying Fundamental Purpose

In an opinion filed August 15, and modified and certified for publication on September 13, 2024, the Fourth District Court of Appeal (Div. 2) resolved cross-appeals from a judgment granting a limited writ by reversing with directions to deny the writ.  The Court thus found the City of Upland’s (City) Mitigated Negative Declaration (MND) for approvals of a 201,096-square foot parcel-delivery warehouse project legally adequate under CEQA.  Upland Community First v. City of Upland (2024) 105 Cal.App.5th 1.  In doing so, the Court not only upheld an environmental document (an MND) that is, in general, notoriously difficult to defend under CEQA’s applicable “fair argument” standard of review, but also upheld, as supported by substantial evidence: (1) City’s application of a stringent 3,000 MTCO2 e/year quantitative threshold of significance to the project’s GHG emissions, and (2) City’s determination that the project’s “net-over-baseline” GHC emissions would not exceed that threshold – despite some effort being required to “connect the dots” regarding the record evidence to show the City’s math in reaching that determination.  While ultimately irrelevant to the outcome in their favor, the Court also held that City and the project’s developer (Bridge) forfeited – by failing to timely raise – their alternative argument that the project’s GHG emissions were insignificant based on a different, qualitative “threshold,” i.e., City’s finding that the project was consistent with its Climate Action Plan (UCAP).  Finally, the Court rejected all of project opponent UCF’s appellate challenges to City’s MND based on allegedly faulty traffic and VMT analyses.Continue Reading Fourth District Reverses Judgment Granting Writ and Holds City of Upland’s MND For Warehouse Project Satisfies CEQA; Rejects Arguments That City’s Choice and Application of Quantitative GHG Significance Threshold Lacked Substantial Evidence Support

In an opinion filed on July 24, and later ordered published on August 19, 2024, the Second District Court of Appeal (Div. 4) affirmed the trial court’s judgment denying a writ petition challenging actions taken by the Los Angeles City Planning Commission (“CPC”) to facilitate and implement three components of the Westside Mobility Plan (the “Mobility Plan”). Westside Los Angeles Neighbors Network v. City of Los Angeles (2024) 104 Cal.App.5th 223.Continue Reading Second District Rejects CEQA Challenges To LA City Planning Commission’s EIR Certification and Categorical Exemption Determination For Multi-Component Project Implementing Westside Mobility Plan, Declines To Reach Significant Issues Forfeited By Appellant

The Sixth District Court of Appeal filed on July 24, and later certified for publication on August 6, 2024, its opinion in Center for Biological Diversity et al. v. County of San Benito, et al. (2024) 104 Cal.App.5th 22.  The case involves the application of CEQA’s short 30-day statute of limitations for challenging an EIR’s sufficiency in the context of multiple CEQA lawsuits brought against a multi-use “roadside attraction” project in San Benito County. Continue Reading Timing Remains Everything: Sixth District Holds CEQA Notice of Determination Filed Before County’s Final Project Approval Decision Does Not Trigger Short Limitations Period

In an opinion filed June 27, and later ordered published (with slight modifications) on July 18, 2024, the First District Court of Appeal affirmed the trial court’s judgment denying a writ petition challenging the City of Lafayette’s use of the CEQA Guidelines section 15332 categorical exemption and related approval of a 12-unit residential condominium project on a 0.3-acre parcel.  Nahid Nassiri v. City of Lafayette, et al (3721 Land LLC, Real Party in Interest) (2024) 103 Cal.App.5th 910.  In disposing of appellant’s arguments that the infill exemption’s elements were not satisfied, the Court of Appeal held that substantial evidence supported the City’s findings that the project site had no value as habitat for endangered, rare or threatened species, and that the project would not result in significant air quality impacts.  The Court declined to reach the issue whether the unusual circumstances exception to the categorical exemption applied because appellant waived it by failing to properly raise it in the trial court.Continue Reading First District Affirms Judgment Rejecting Challenge to CEQA Guidelines Class 32 Infill Development Exemption for 12-Unit Residential Condominium Project