Mitigation

Subscribe to Mitigation via RSS

On July 9, 2014, the California Supreme Court granted the petition for review filed by Plaintiff/Respondent Center for Biological Diversity (CBD) in Center for Biological Diversity, et al. v. Department of Fish and Game (Newhall Land Farming Company) (2d Dist. 2014) 224 Cal.App.4th 1105 (Supreme Ct., Case No. S217763).  The new grant adds to the half dozen other CEQA cases in which the Supreme Court has granted review in the last few years.
Continue Reading Supreme Court’s CEQA Docket Expands With Grant of Review in Newhall Ranch Case

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

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

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