Miller Starr Regalia’s developer clients are always keenly interested in efficient and defensible CEQA compliance, which entails effective utilization of legislative and regulatory exemptions and streamlining options where the same are available for particular projects. My partner, Carolyn Nelson Rowan, the incoming Editor-in-Chief of the Miller & Starr California Real Estate 4th treatise, and I took a detailed look at recent judicial application of the statutory CEQA exemption implemented by CEQA Guidelines §15183, which can provide either a complete exemption or streamlining benefits for projects consistent with the development density/intensity established by existing community plans or zoning policies reviewed by a prior EIR. Our article on the same, “Hilltop Group, Inc. v. County of San Diego: Throwing a Judicial Monkey Wrench Into the Spin Cycle of Local Agency CEQA Laundering?” was published in the May 2024 issue of the Miller & Starr Real Estate Newsalert, and can be found here.Continue Reading Recent Judicial Developments in CEQA Exemptions and Streamlining

In a partially published opinion filed March 29, 2024, the First District Court of Appeal (Div. 4) rejected contentions that the pre-judgment completion of construction of a shooting range mooted a CEQA challenge to the project; it held an effective remedy in the form of various mitigation measures alleged in the CEQA petition remained available and reversed the trial court’s judgment entered in favor of respondents and real party after sustaining their demurrers and granting their motions to strike and for judgment on the pleadings.  In addition to applying established mootness principles, the Court resolved a number of other issues in holding petitioner Vichy Springs Resort, Inc. (“Vichy”) had sufficiently alleged a CEQA claim at the pleadings stage against both the City of Ukiah (“City”) and the County of Mendocino (“County”) in a unique factual and legal context presenting novel issues of land use regulatory authority and intergovernmental immunity.  Vichy Springs Resort, Inc. v. City of Ukiah, et al. (Ukiah Rifle and Pistol Club, Inc., Real Party in Interest) (2024) 101 Cal.App.5th 46.Continue Reading First District Holds CEQA Challenge To Shooting Range Project On City-Owned Land In Unincorporated County Was Not Mooted By Project’s Construction During Trial Court Proceedings Despite Petitioner’s Failure To Seek Preliminary Injunction

In a partially published (but mostly unpublished) opinion filed on March 7, 2024, the Fifth District Court of Appeal reversed the trial court’s judgment and writ-discharge order which had upheld Kern County’s most recently revised “streamlined permitting” ordinance for oil and gas wells and its associated CEQA review.  V Lions Farming, LLC v. County of Kern, et al. (California Independent Petroleum Association, et al., Real Parties) (2024) 100 Cal.App.5th 412.  The Court of Appeal instead directed entry of a judgment and writ setting aside the County’s revised ordinance and related certification of a revised supplemental recirculated EIR (SREIR) and addendum.  It held (in unpublished portions of its opinion) that the SREIR’s discussion of cancer risk from the potential drilling of multiple wells near a sensitive receptor was informationally deficient, and that the County also erred in analyzing the significance of lowering groundwater levels in wells by misconstruing CEQA to prohibit consideration of the social and economic impacts on disadvantaged communities in making that significance determination.  (These and other unpublished portions of the opinion will not be discussed in any further detail in this post.)Continue Reading Fifth District Clarifies That Agricultural Conservation Easements (ACE’s) Qualify As Legally Permissible “Compensatory Mitigation” For Agricultural-Land Conversion Impacts Under CEQA Despite Not Ensuring No Net Loss

In an important published opinion filed February 16, 2024, the Fourth District Court of Appeal (Div. 1) held the San Diego County Board of Supervisors committed a prejudicial abuse of discretion in granting project opponents’ appeals of the Planning Commission’s decision upholding County’s use of the CEQA Guidelines section 15183 exemption for a construction debris and inert materials recycling facility project.  Hilltop Group, Inc., et al v. County of San Diego, et al. (2024) 99 Cal.App.5th 890.  The decision is noteworthy not just as the newest in a series of recent published decisions explicating the application of this important CEQA exemption, but because it sides with and grants a writ remedy to a project developer plaintiff that ultimately prevailed in litigation alleging a lead agency overstepped its legal authority by ordering preparation of an unnecessary EIR for an exempt project.Continue Reading CEQA Remedies Go Both Ways:  Fourth District Reverses Judgment Upholding San Diego County Board’s Decision Granting Project Opponents’ Administrative Appeal, Holds Board Erred In Finding CEQA Guidelines Section 15183 Statutory Exemption Inapplicable And Ordering EIR Prepared for Exempt Industrial Project

On October 20, 223, the First District Court of Appeal (Div. 3) filed an “Order Modifying Opinion; and Denying Petitions for Rehearing and Publication [No Change in Judgment]” in Yerba Buena Neighborhood Consortium, LLC, et al. v. The Regents of the University of California (2023) 95 Cal.App.5th 779, litigation that I analyzed in my 10/10/23 post here.  The Order denied petitions for rehearing, denied the California Building Industry Association’s request to publish unpublished portions of the Opinion, and slightly modified the lengthy opinion to add a single footnote and revise one sentence.  The Court of Appeal’s docket also reflects that petitions for review have been filed in the case and those may not be acted on by the Supreme Court until around the end of the year.Continue Reading First District Denies Rehearing and Publication Requests, Slightly Modifies Opinion With No Change in Judgment in CEQA Case Upholding U.C. Regents’ EIR for Parnassus Heights Campus Long-Range Development Plan; Petitions For Review Filed

In an opinion filed September 13, and modified and certified for publication on October 6, 2023, the Fourth District Court of Appeal (Div. 3) affirmed the trial court’s judgment denying a CEQA writ petition challenging the City of Laguna Beach’s determination that the Guidelines’ Class 31 categorical exemption applied to its approval of a project to remodel a historic single family home.  Historic Architecture Alliance, et al v. City of Laguna Beach, et al (Ian and Cherlin Kirby, Real Parties in Interest) (2023) 96 Cal.App.5th 186.    The decision refines the established CEQA principle that a project that may cause a change in the significance of a historical resource is also one that may have a significant environmental effect (and thus require an EIR or MND) in the unique context of CEQA’s categorical exemption for projects found to be consistent with the “Secretary of the Interior’s Standards for the Treatment of Historic Properties” (the “Secretary’s Standards”).  (CEQA Guidelines, § 15331.)  It also clarifies that the “fair argument” test does not apply to a project opponent’s attempt to establish the historical resource exception (Guidelines § 15300.2(f)) to this categorical exemption; because both the exemption and the exception require the lead agency to make the same factual determination – i.e., the project’s consistency with the Secretary’s Standards – applying the fair argument test to the exception would render the exemption meaningless.Continue Reading Fourth District Affirms Judgment Upholding City’s Use of CEQA Guidelines’ Historical Resource (Class 31) Exemption To Approve Historic Single Family Home Rehabilitation Project; Holds “Fair Argument” Test Doesn’t Apply To Exception Requiring Same Factual Determination As Exemption

In a partially published opinion filed September 20, 2023, the First District Court of Appeal (Div. 3) affirmed the Alameda County Superior Court’s judgments denying writ petitions in three partially consolidated CEQA actions challenging the 2021 project/program EIR for the Comprehensive Parnassus Heights Plan.  Yerba Buena Neighborhood Consortium, LLC, et al v. Regents of the University of California/San Franciscans for Balanced and Livable Communities v. Regents of the University of California (2023) 95 Cal.App.5th 779. Continue Reading First District Affirms Judgment Upholding UCSF’s EIR for Long-Range Development Plan Substantially Increasing Parnassus Heights Campus Development Against Numerous CEQA Challenges

On August 10, 2023 the Sixth District Court of Appeal filed its published opinion in Santa Rita Union School District v. City of Salinas (2023) 94 Cal.App.5th 298.  On September 7, 2023, it filed an Order slightly modifying its opinion without modifying the judgment and denying rehearing.  The case concerns the certification of an EIR for the “West Area Specific Plan” in and by the City of Salinas, and claims by two school districts in the City that asserted perennial underfunding meant that the EIR failed to adequately address school-related impacts.  While the trial court agreed in part, granting narrow writ relief enjoining future entitlements while leaving the specific plan approval in place, the Sixth District did not, holding that the districts’ expressed concerns were speculative in nature and need not have been evaluated in the EIR.Continue Reading Sixth District Reverses Judgment Finding Specific Plan FEIR Inadequate For Failure To Adequately Analyze And Respond To Comments Regarding School Facilities-Related Impacts; Court Of Appeal Holds FEIR Was Adequate In All Respects And Was Not Required To Speculate Regarding Possible Environmental Impacts From Uncertain Future School District Decisions Made To Accommodate Increased Enrollment Should Funds Prove Unavailable To Construct New Schools Contemplated In Plan

In late April the Bay Area Air Quality Management District (“BAAQMD”) promulgated its revised 2022 CEQA Guidelines (“2022 Guidelines”), available here.  Previously BAAQMD had published guidelines in 2012, which were the subject of litigation culminating in the California Supreme Court’s decision in California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, an important case delineating the scope of CEQA in which we represented several amici curiae and which we blogged about here.Continue Reading BAAQMD Adopts Ambitious Revised 2022 CEQA Guidelines

In an opinion filed April 18, and belatedly ordered published on May 10, 2023, the Sixth District Court of Appeal upheld the City of San Jose’s (City) certification of a final Supplemental EIR (FSEIR) for development of three high-rise office towers (the “Project”) on an eight-acre downtown site containing several historic structures which the Project required to be demolished. Preservation Action Council of San Jose v. City of San Jose (SJ Cityview, LLC, Real Party in Interest) (2023) 91 Cal.App.5th 517. In affirming the trial court’s judgment denying Preservation Action Council of San Jose’s (Appellant) petition for writ of mandate, the Court rejected Appellant’s arguments that the FSEIR failed to adequately analyze and provide compensatory mitigation for the historic buildings and failed to adequately respond to comments on those issues.Continue Reading Sixth District Holds Downtown San Jose Office Project FSEIR’s Brief Discussion And Rejection of “Compensatory” Mitigation for Historic Buildings Razed By Project Was Informationally Adequate Under CEQA Based On City’s Unchallenged Factual Finding That No Similar Historic Buildings Existed Elsewhere In City’s Downtown