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Sometimes in the land use world, municipal planners and other regulators need to be reminded of the simple things.  For example, a fundamental precept of due process is that the rules cannot be changed in the middle of the game because doing so is arbitrary and unfair.  To some extent, this basic concept underlies or informs the law of vested rights, estoppel, stare decisis, and statutory interpretation.

The Second District’s recently published decision in Tower Lane Properties v. City of Los Angeles (2nd Dist. 2014) 224 Cal.App.4th 262, Case No. B244092, applies simple and well established land use rules that the City of Los Angeles and its planners apparently forgot – or ignored.  These include: (1) CEQA applies only to discretionary approvals; (2) grading and building permits are generally not discretionary approvals; (3) approvals of tentative maps for the subdivision of land are discretionary approvals; (4) tentative maps – or any type of subdivision map – are required only for actual subdivisions of land; and (5) an agency’s interpretation of its own ordinance is not entitled to deference if not consistent with the ordinance’s plain language, or not itself longstanding and consistent.Continue Reading Overreaching to Apply CEQA; Second District Strikes Down LA’s Attempted Mid-Game Rule Change in Tower Lane Properties

Followers of CEQA reform efforts over the past several years will have observed two general trends: (1) Legislative reform has proven difficult, incremental, and marked by political division and dealmaking; and (2) the Supreme Court has “taken up the slack” by aggressively granting review of and resolving numerous major CEQA issues.  In doing so, the high court has brought greater clarity and “common sense” to the jurisprudence defining the parameters and operation of this venerable law – a significant judicial reform effort of which CEQA has been sorely in need.  While much remains that could be done to clarify, streamline and modernize CEQA, the Supreme Court’s judicial reform effort continues with seemingly unabated vigor.
Continue Reading Supreme Court is Primary CEQA Reform Engine

In a partially-published opinion filed January 30, 2014, the First District Court of Appeal, Division 3, reversed the trial court’s judgment denying a writ petition, and held that Caltrans must correct certain deficiencies in its EIR for a highway construction project to realign a 1-mile stretch of US Route 101 through Richardson Grove State Park (Park).  (Lotus v. Department of Transportation, et al. (1st Dist., Div. 3, 1/30/14) 223 Cal.App.4th 645.)  While rejecting many of appellants’ challenges, the Court of Appeal in the published portion of its opinion held the EIR “failed to properly evaluate the significance of impacts on the root systems of old growth redwood trees adjacent to the highway.”
Continue Reading CEQA Requires CalTrans’ EIR to Separately Analyze Significance of Highway Project’s Impacts on Protected Old Growth Redwoods’ Root Zones Prior to Discussing Mitigation and Concluding Impacts are Mitigated

The lessons taught by the Fifth District Court of Appeal in its recently-published decision in Protect Agricultural Land v. Stanislaus County Local Agency Formation Commission (City of Ceres, RPI), 223 Cal.App.4th 550, are rather simple:  (1) the validity of final LAFCO approvals may only be challenged through compliance with the validation action procedures of Code of Civil Procedure sections 860 et seq. (Gov. Code, § 56103); and (2) a plaintiff should do its legal research before bringing a CEQA action to ascertain if any special procedural requirements outside of CEQA apply to the particular type of land use approvals it seeks to set aside.
Continue Reading CEQA Action Seeking to Avoid LAFCO Annexation and SOI Change Approvals is Dismissed for Failure to Comply with Procedural Requirements for Reverse Validation Actions

The California Building Industry Association (CBIA) laid out its case that CEQA contains no general directive requiring analysis of the existing environment’s impacts on a future project in a 50-page opening brief filed in the California Supreme Court on January 10, 2014.  California Building Industry Association v. Bay Area Quality Management District, Supreme Court Case No. S213478.  The Supreme Court recently granted review of the case, which involves the CBIA’s challenge to BAAQMD’s 2010 CEQA Thresholds of Significance and implementing guidelines For Toxic Air Contaminants (TACs) and particulate matter (PM2.5), limited solely to the “CEQA-in-reverse” issue.  (See “Supreme Court Will Review “CEQA-In-Reverse” Issue in CBIA Case Challenging 2010 BAAQMD Air Quality Guidelines,” by Arthur F. Coon, posted 12/9/13.)
Continue Reading CEQA-In-Reverse Case Opening Brief Filed In California Supreme Court

Plaintiff Save the Plastic Bag Coalition (Coalition) lost a third consecutive published appellate decision in its litigation campaign to require EIRs for virtually all local ordinances that ban or restrict the use of single-use plastic bags in favor of alternatives deemed environmentally superior.  The First District Court of Appeal’s opinion in Save the Plastic Bag Coalition v. City and County of San Francisco (1st Dist., Div. 2, 2014) 222 Cal.App.4th 863, Case No. A137056, which was filed December 10, 2013, and later ordered published on January 3, 2014, extended the existing CEQA precedents to a local ordinance covering a significantly larger urban area – San Francisco – while showing little tolerance for the Coalition’s contrary arguments.
Continue Reading “Bag It!” – Third Published CEQA “Bag Ban” Decision Upholds San Francisco’s Ordinance as Categorically Exempt While Slamming Plaintiff’s Arguments

In an opinion recently ordered published, the First District Court of Appeal extensively reviewed the relevant case law and expressed skepticism that CEQA would operate in reverse to require analysis of potential impacts on a mixed-use project’s construction workers and future residents from pre-existing soil contamination at the project site.  Yet, while illuminating its tentative views on this important CEQA issue, the Court stopped short of expressly relying on them, and instead upheld the project’s challenged Mitigated Negative Declaration (MND) based on plaintiffs’ failure to identify substantial evidence in the administrative record supporting a fair argument that disturbance of the site’s contaminated soils may have a significant effect on the environment.  Parker Shattuck Neighbors, et al, v. Berkeley City Council, et al (CityCentric Investments, LLC, et al, Real Parties in Interest), 222 Cal.App.4th 768, Case No. A136873 (1st Dist., Div. 4 2013), filed 11/7/13; pub. order 12/4/13 (rec’d from court 12/30/13).
Continue Reading First District “Doubts” CEQA Operates In Reverse, Upholds Mitigated Negative Declaration For Urban Infill Project Despite Soil and Groundwater Contamination In Parker Shattuck Neighbors

Few would dispute that the California Supreme Court has played a leading role in judicial CEQA reform in recent years.  It has clarified the law on the operation of CEQA’s statues of limitations, and attempted to bring more coherence and common sense to the fundamental rules and concepts governing the statute’s scope, operation and timing.

Having issued another major decision in 2013 clarifying the law on environmental baseline analysis (see Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439 [CEQA requires project impact assessment against “existing conditions” baseline, disallows sole reliance on “future conditions” baseline unless substantial evidence shows existing conditions baseline would be misleading or without informational value]), the Supreme Court is poised to tackle several more important CEQA issues in decisions that may be forthcoming the next year.Continue Reading Judicial CEQA Reform On Supreme Court’s Docket In Coming Year?

On November 26, 2013, the California Supreme Court by unanimous vote granted review of a fundamental legal issue that repeatedly has surfaced in recent years in both published appellate opinions and the legislative debate over CEQA reform:  Does CEQA ever operate “in reverse”?  That is, is CEQA review confined to an analysis of a proposed project’s impacts on the existing environment, or does it also require analysis of the existing environment’s impacts on the proposed project and its future occupants and users?

The case is CBIA v. BAAQMD (Supreme Court Case No. S213478), a decision in which the First District Court of Appeal rejected the CBIA’s facial challenge to BAAQMD’s 2010 Thresholds of Significance and Guidelines for Toxic Air Contaminants, and at the same time called into question the “continued vitality” of a line of appellate cases holding that the “reverse application” of CEQA is inconsistent with its language and intent. For my analysis of the Court of Appeal’s opinion, which has been vacated by the Supreme Court’s grant of review, see “Adoption of CEQA Thresholds of Significance Is Not A CEQA “Project,” First District Holds In Reinstating BAAQMD’s 2010 Air Quality Guidelines,” by Arthur F. Coon, posted on August 16, 2013.Continue Reading Supreme Court Will Review “CEQA-In-Reverse” Issue In CBIA Case Challenging 2010 BAAQMD Air Quality Guidelines

In a decision recently ordered published, the Fourth District Court of Appeal added to the growing progeny of Save Tara, and affirmed the trial court’s judgment denying the City of Irvine’s writ petition seeking to compel Orange County to prepare an EIR for its submittal of an application for state funding to expand a jail facility.  City of Irvine v. County of Orange (4th Dist., Div. 3, 2013) 221 Cal.App.4th 846.  County’s funding application under the State’s AB 900 process did not commit it to a definite course of action regarding the jail expansion, however, and was merely a preliminary funding step; it was therefore not the “approval” of a project requiring CEQA review.
Continue Reading All About “Commitment”: CEQA Review is Not Triggered By Orange County’s AB 900 Application For State Funding To Expand Existing Jail Facility, Which Was Not A Project Approval