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On January 17, 2017, the California Supreme Court denied the losing appellants’ petition for writ of supersedeas, stay request, and petition for review of the First District Court of Appeal’s decision in Mission Bay Alliance v. Office of Community Investment and Infrastructure, et al. (GSW Arena LLC, et al., Real Parties in Interest) (2016) 6 Cal.App.5th 160; Supreme Court Case No. S239371.  This action effectively ends the CEQA challenge to the Golden State Warriors San Francisco Arena project brought by a coalition of its opponents and removes the major legal hurdle to its construction.  Consistent with the required “fast track” CEQA review of and litigation over this Governor-certified “environmental leadership development project,” the high court’s action came relatively quickly – just a month and a half after the filing of the Court of Appeal’s decision.  My detailed post on the Court of Appeal’s published decision in the case, which now stands undisturbed as legal precedent, can be found here.
Continue Reading California Supreme Court Denies Review in Expedited CEQA Litigation over Golden State Warriors Arena Project Approval

On January 11, 2017, the California Supreme Court by unanimous order granted review in yet another CEQA case, Union of Medical Marijuana Patients, Inc. v. City of San Diego (2016) 4 Cal.App.5th 103, Supreme Court Case No. S238563.
Continue Reading Supreme Court Grants Review in Medical Marijuana Case Presenting CEQA “Project” Definition Issues

In an opinion filed December 7, and later ordered published on December 16, 2016, the Fourth District Court of Appeal affirmed a judgment denying a writ petition on the “single legal issue” whether plaintiffs were entitled under Public Resources Code § 21151(c) (and a municipal code section with essentially the same content) to an appeal of a planning commission’s “substantial conformance review” (SCR) determination to the city council.  (San Diegans for Open Government et al v. City of San Diego (Sunroad Enterprises et al, Real Parties in Interest) (4th Dist., Div. 1, 2016 ) 6 Cal.App.5th 995.)  The SCR decision found that changes in an already CEQA-reviewed and approved mixed-use development project were consistent with previous CEQA documents and did not require a new environmental document.  Because such a determination was not one of the decisions expressly listed in Section 21151(c) as appealable of right to the lead agency’s elected decision making body, and there was no independent right to such an appeal order the City’s municipal code, the City properly refused to process plaintiffs’ attempted administrative appeal of the planning commission’s decision.
Continue Reading CEQA Does Not Require Local Lead Agency To Provide For Administrative Appeal To Elected Body of Nonelected Body’s Decision That Project Changes Require No Subsequent Review

In a lengthy published opinion filed November 29, 2016, the First District Court of Appeal rejected all legal challenges to the City of San Francisco’s Final Supplemental Environmental Impact Report (FSEIR) and related land use approvals for a 488,000-square-foot multipurpose event center project on 11 acres in the City’s Mission Bay South redevelopment plan area (the “Project”).  Mission Bay Alliance, et al. v. Office of Community Investment and Infrastructure, et al. (GSW Arena LLC, et al., Real Parties in Interest (2016 1st Dist., Div. 3) 6 Cal.App.5th 160.)  The event center would host home games of the Golden State Warriors NBA basketball team, concerts, conferences, conventions and other sporting and cultural events, and the overall Project would also include “a variety of mixed-use structures, including two 11-story office and retail buildings, parking facilities, and 3.2 acres of open space.”
Continue Reading Slam Dunked! First District Rejects All CEQA And Land Use Challenges To Golden State Warriors Event Center Project And EIR In Expedited Litigation

On November 22, 2016, the California Supreme Court issued a significant Order granting review in Coastal Hills Rural Preservation v. County of Sonoma (2016) 2 Cal.App.5th 1234, and also transferring the matter back to the Court of Appeal (First Appellate District, Div. 1) for reconsideration in light of Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2016) 1 Cal.5th 937, 957-959, fn. 6, and CEQA Guidelines § 15384.  The high court further ordered the First District’s opinion to be depublished, and it is therefore no longer citable as binding legal precedent.  Both orders were unanimous.
Continue Reading Wither Subsequent Review? Supreme Court Again Weighs In On CEQA Subsequent Review Standards Following Negative Declarations – Grants, Retransfers, and Depublishes First District’s Coastal Hills Rural Preservation Decision

On November 7, 2016, the Third District Court of Appeal filed a published opinion mostly upholding the EIR for a 48.75-acre, 328-unit residential infill project (known as McKinley Village) against various CEQA challenges, and finding the Project to be consistent with the City of Sacramento’s general plan.  East Sacramento Partnership for a Livable City v. City of Sacramento (Encore McKinley Village, LLC, Real Party in Interest) (3d Dist. 2016) 5 Cal.App.5th 281.  In a pointed reminder that a perfectly CEQA-compliant EIR for a large infill project is difficult to prepare, however, the Court found merit in a single argument of the petitioner and appellant neighborhood group, ESPLC – its argument that “the EIR ignored [certain] significant traffic impacts.”  Specifically, the EIR failed to adequately support its less-than-significant (LTS) impact conclusion concerning such impacts, in light of a substantial project-caused degradation in level of service (LOS) at affected intersections and streets that was nonetheless compliant with the General Plan’s policy that LOS F was acceptable for the area.  Accordingly, the Court of Appeal reversed the trial court’s judgment upholding the EIR, and ordered it to issue a writ directing the City to set aside its certification and correct this lone deficiency prior to considering recertification.
Continue Reading Sacramento Residential Infill Project EIR Violated CEQA By Basing Less-Than-Significant Traffic Impact Finding Solely On Compliance With General Plan Policy Allowing LOS F

“… like all things in life, project plans are subject to change.”
(Slip Opn. of Kruger, J., p. 4.)

The California Supreme Court provided needed clarification to some aspects of the operation of CEQA’s “subsequent review” rules (Pub. Resources Code, § 21166; CEQA Guidelines, § 15162) in its highly anticipated opinion, filed on September 19, 2016, in Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2016) 1 Cal.5th 937.   CEQA’s subsequent review rules embody CEQA’s concerns for finality and efficiency, and implement a presumption against requiring a subsequent EIR for a modified project that has previously undergone CEQA review – i.e., they  govern whether an EIR will be required, or another type of CEQA document (or no further documentation) will suffice, when changes are proposed in a project for which an initial CEQA review has been completed.  (Slip Opn., p. 12.)  I won’t reiterate this case’s facts and relevant background history (including oral argument and post-argument briefing in the Supreme Court) which can be found (in reverse chronological order) in my prior blog posts of July 8, May 12, May 4, April 26, 2016, and March 25, 2014.  This post focuses on the legal rules and standards announced by the Court and their potentially significant implications for lead agencies and project proponents who consider approval of changes to a development project that has already undergone and survived a full CEQA review.Continue Reading Supreme Court Addresses CEQA Subsequent Review Rules in San Mateo Gardens Case

In a published opinion filed August 31, 2016, the Sixth Appellate District Court of Appeal rejected claims under CEQA and the Surface Mining and Reclamation Act (“SMARA”; Pub. Resources Code, §§ 2700, et seq.), and affirmed the denial of a writ petition challenging Santa Clara County’s 2012 EIR and related approval of a reclamation plan amendment for the Permanente Quarry. Bay Area Clean Environment, Inc. v. Santa Clara County (Lehigh Southwest Cement Company, et al., Real Parties in Interest) (2016) 2 Cal.App.5th 1197, 2016 WL 9540085.  The plan amendment governs (over a 20-year period) the closing and reclaiming of the Quarry, which has conducted limestone and aggregate surface mining operations since 1903 in the unincorporated County.  The Quarry has expanded from about 1,300 acres when the Permanente Corporation purchased it in 1939 to its current 3,510 acres.  It includes a central rock/limestone mining pit, a rock crushing area, and administrative offices all located within the upper portion of the Permanente Creek watershed; the creek flows east and borders the Quarry pit’s south side before leaving the Quarry property and running to the bay.
Continue Reading Sixth District Rejects SMARA And CEQA Challenges To Permanente Quarry Reclamation Plan Amendment And Related EIR

The First District Court of Appeal has issued another published decision applying the “substantial evidence” standard of review to a local agency’s decision not to prepare an EIR for approval of revisions to a project for which a Mitigated Negative Declaration was initially prepared. Coastal Hills Rural Preservation v. County of Sonoma (Jack Petranker, et al., Real Parties In Interest) (1st Dist., Div. One, 8/31/16) ___Cal.App.5th___, 2016 WL 4538384. The project at issue was “the third in a series of master use permits (MUPs) for … the Tibeten Nyingma Meditation Center[’s] (TNMC)” Buddhist retreat center (Ratna Ling) located on a 120-acre property, designated as Resources and Rural Development (RRD) in County’s general plan, in a rural area of western Sonoma County. A citizens group opposed to retreat expansion, Coastal Hills Rural Preservation (CHRP), sued under CEQA claiming an EIR was required because the project greatly expanded an existing “industrial” printing press operation on the property (used by retreatants to print sacred Buddhist texts for free distribution in Asia to Buddhists whose libraries have been destroyed by Chinese authorities). The most recent MUP application sought to:  authorize as permanent four (4) previously temporary steel-frame, fire-retardant membrane storage tents totaling approximately 40,000 square feet (equipped with automatic sprinklers and used to store the texts); add to the property’s extensive existing facilities a six-bedroom residence and eight tent cabins for volunteers; and increase the retreat’s total occupancy limit to 98 persons with 24 additional persons allowed on a seasonal basis (apparently fluctuating with the intensity of the volunteer printing activities).
Continue Reading First District Applies CEQA’s “Subsequent Review” Rules, Substantial Evidence Standard of Review; Upholds Subsequent Mitigated Negative Declaration and Modified Master Use Permit for Remote Buddhist Retreat

In the published part of a partially published opinion filed July 11, 2016, the Second Appellate District Court of Appeal held that Public Resources Code § 21168.9 does not authorize an appellate court to issue and supervise compliance with a writ of mandate on direct appeal, but, rather, such a matter must be remitted to the trial court with appropriate directions. Center for Biological Diversity v. Department of Fish and Wildlife (The Newhall Land and Farming Company, Real Party in Interest) (5th Dist., Div. 5, 2016) 1 Cal.App.5th 452, Case No. B245131.  The Court thus rejected the real party developer’s motion (on remand of the case from the Supreme Court) arguing that CEQA’s “general principle” of expediting litigation and specific language in its remedies statute (Pub. Resources Code, § 21168.9) authorized such action.
Continue Reading CEQA Remedies Statute Does Not Authorize Appellate Court To Issue Writ And Supervise Compliance On Direct Appeal, Holds Second District In Partially Published Decision On Remand In Newhall Ranch Case