In an opinion filed January 30, and later ordered published on March 2, 2020, the Third District Court of Appeal affirmed a judgment denying a writ petition filed by plaintiffs Environmental Council of Sacramento and the Sierra Club challenging the EIR for Cordova Hills, a large master planned community project approved by Sacramento County.  Environmental Council of Sacramento v. County of Sacramento (Cordova Hills, LLC, et. al., Real Parties in Interest) (3d Dist. 2020) 45 Cal.App.5th 1020.

Continue Reading Third District Affirms Judgment Rejecting CEQA Challenges To EIR For Cordova Hills Master Planned Community Project

In a partially-published, 150-page slip opinion resolving appeals in consolidated cases, and filed February 25, 2020, the Fifth District Court of Appeal affirmed in part and reversed in part a trial court decision finding CEQA defects in the 1800-plus page EIR prepared for Kern County’s adoption of an ordinance designed to provide a streamlined, ministerial permitting process for new oil and gas wells in the county.  King and Gardiner Farms, LLC v. County of Kern, et al. (California Independent Petroleum Association, et al., Real Parties in Interest); Committee for a Better Arvin, et al. v. County of Kern, et al. (California Independent Petroleum Association, et al., Real Parties in Interest) (5th Dist. 2020) 45 Cal.App.5th 814.  The published portion of the opinion held the EIR improperly deferred the formulation and implementation of mitigation for significant water supply impacts; failed to adequately mitigate farmland conversion impacts due to improper reliance on agricultural conversion easements (ACEs) as offsetting mitigation; and failed to adequately analyze noise impacts by relying solely on an absolute cumulative numerical limit threshold of significance, rather than also analyzing the significance of the magnitude of project noise increases over ambient levels in differently affected settings.  (Approximately 53 pages of the opinion, a portion finding CEQA violations with respect to air quality and related health risks due to failure to adequately discuss PM 2.5 emissions impacts and related mitigation, and failure to recirculate the DEIR after adding significant new information in the form of an appended Cumulative Health Risk Assessment, were not certified for publication; consequently, those portions set no precedent and will not be discussed in further detail in this post.)

Continue Reading Fifth District Holds EIR For Kern County’s Ministerial Oil and Gas Well Permitting Ordinance Violates CEQA Due To Improperly Deferred Mitigation For Water Supply Impacts, Inadequate Mitigation For Farmland Conversion, And Inadequate Analysis of Noise Impacts

In an opinion filed November 26, and ordered published on December 23, 2019, the Third District Court of Appeal partially reversed a judgment rejecting a labor union’s CEQA challenges to the EIS/EIR for a geothermal power plant project on federal land in Mono County.  Russel Covington, et al v. Great Basin Unified Air Pollution Control District, et al. (Orin 50 LLC, et al, Real Parties in Interest) (2019) 43 Cal.App.5th 867.

Continue Reading “ROG Won: A CEQA Wars Story” – Third District Holds Geothermal Energy Project EIR’s Rejection Of Proposed Mitigation Measures For Significant ROG Fugitive Emissions Impact Violated CEQA Where No Substantial Evidence Showed Measures’ Infeasibility

In an opinion filed September 6, and later ordered published on October 7, 2019, the First District Court of Appeal (Div. 4) affirmed the trial court’s judgment denying plaintiff groups’ writ petition challenging Sonoma County’s use permit and related mitigated negative declaration (MND) for a winery project in the County’s rural Knights Valley area.  Maacama Watershed Alliance, et al v. County of Sonoma, et al. (James Bailey, Knights Bridge Vineyards, LLC, Real Parties in Interest) (2019) 40 Cal.App.5th 1007.

Continue Reading First District Affirms Judgment Upholding MND for Rural Sonoma County Winery Project, Holds Unsubstantiated Expert Opinion Fails to Support Fair Argument of Geologic, Erosion Or Groundwater Impacts

In an opinion filed September 5, and later certified for partial publication on October 3, 2019, the Third District Court of Appeal affirmed a judgment upholding the City of Chico’s EIR and related statement of overriding considerations for Walmart’s project to expand an existing store, add a gas station, and create two new outparcels for future commercial development.  Chico Advocates for a Responsible Economy v. City of Chico (Walmart Inc., Real Party in Interest) (2019) 40 Cal.App.5th 839.  The published portion of the Court’s opinion rejects plaintiff/appellant CARE’s challenges to the EIR’s “robust 43-page urban decay analysis,” holding as a matter of law that “the potential loss of close and convenient shopping is not an environmental issue that must be reviewed under CEQA” and that the EIR’s methodology for analyzing urban decay was supported by substantial evidence.  The unpublished portion of the opinion (which won’t be further discussed in detail) held that the City’s statement of overriding considerations was supported by substantial evidence, did not need to “describe in detail the weight accorded to the various aspects of the agency’s balancing of competing public objectives,” and did not need to include findings “reconciling” the project approval with the CIty’s rejection of an earlier, materially different expansion project in 2009.

Continue Reading Third District Rejects CEQA Challenges To Chico Walmart Expansion Project EIR’s Urban Decay Analysis And City’s Statement Of Overriding Considerations

In a 30-page opinion originally filed July 3, and certified for publication on July 18, 2019, the Third District Court of Appeal affirmed the trial court’s judgment denying a writ petition challenging, on zoning law and CEQA grounds, the City of Sacramento’s approval of a high-rise infill housing project in its midtown area.  Sacramentans for Fair Planning v. City of Sacramento (2500 J Owners, LLC, Real Party in Interest) (2019) 37 Cal.App.5th 698.  The project, known as the Yamanee project, calls for construction of a mixed-use condominium building 15 stories (and 178-1/2-feet) high on a .44-acre site at the southeast corner of 25th and J streets.  It would total 177,032 square feet of space on the 19,200 square foot site, consisting of one floor of commercial uses, three levels of parking, one floor of resident amenities, and 10 floors containing 134 residential condominiums.

Continue Reading Third District Upholds Sustainable Communities Environmental Assessment (SCEA) Used Instead Of Traditional CEQA Document To Approve High-Rise, High-Density Mixed-Use Condo Housing Project In Sacramento’s Midtown

In a 38-page opinion filed on May 16, and belatedly ordered published on June 14, 2019, the Third District Court of Appeal affirmed the trial court’s judgment rejecting all of plaintiff/appellant Center for Biological Diversity’s (“CBD”) CEQA and statutory challenges to the EIR that the California Department of Conservation, Division of Oil, Gas and Geothermal Resources (“DOGGR”) was required by S.B. 4 (Stats. 2013, ch. 13, § 2) to prepare “pursuant to [CEQA], to provide the public with detailed information regarding any potential environmental impacts of well stimulation in the state.”  (Pub. Resources Code, § 3161(b)(3)(A).)  The Court’s opinion addresses and disposes of CBD’s CEQA and other challenges in a highly unusual, and even unprecedented, context – that of a statutorily required program EIR addressing the statewide impacts of oil and gas well-stimulation treatments (including the controversial treatment known as hydraulic fracturing or “fracking”) prepared in the absence of any “project” being approved or undertaken by the ostensible “lead agency” (DOGGR).  Center for Biological Diversity v. California Department of Conservation, Division of Oil, Gas and Geothermal Resources, et al. (3d Dist. 2019) 36 Cal.App.5th 210.

Continue Reading The Curious Case of the EIR Without A “Project”: Third District Rejects CEQA, Statutory Challenges To DOGGR’s “Unique” S.B. 4-Mandated EIR Analyzing Statewide Fracking/Well Stimulation Impacts

The California Supreme Court heard oral arguments in an important case we’ve been following involving CEQA’s definition of a “project” on the afternoon of June 4, 2019, and took the matter under submission.  The case – Union of Medical Marijuana Patients v. City of San Diego (California Coastal Commission, Real Party in Interest), No. S238563 – involves a City of San Diego ordinance authorizing (as a new use in industrial/commercial zones) and restricting the location and manner of operation of medical marijuana dispensaries within the City, and plaintiff’s challenge to the City’s determination that its adoption of the ordinance was not a “project” for purposes of having to undergo CEQA review.  The Court’s grant of review encompassed the issues whether the particular ordinance is a CEQA project and also whether zoning ordinances in general are CEQA projects.

Continue Reading Supreme Court Hears Oral Argument In CEQA Project Definition Case

In a lengthy opinion filed February 22, and belatedly ordered published on March 25, 2019, the First District Court of Appeal (Div. 1) affirmed the trial court’s judgment denying a petition for writ of mandate challenging the EIR for a mixed use business and residential project (the “5M Project”) on 4 acres in downtown San Francisco.  South of Market Community Action Network v. City and County of San Francisco (Forest City California Residential Development, Inc., et al., Real Parties in Interest) (2019) 33 Cal.App.5th 321.  The 5M Project includes a general plan amendment and development agreement, and would provide “office, retail, cultural, educational, and open-space uses …, primarily to support the region’s technology industry and provide spaces for co-working, media, arts, and small-scale urban manufacturing” on a site bounded by Mission, Fifth, Howard, and Sixth Streets.  The project site is currently occupied by eight buildings with approximately 317,700 gross square feet (gsf) of office and commercial uses (including the Chronicle Building, which the project would renovate), and seven surface parking lots.

Continue Reading First District Rejects Laundry List Of CEQA Challenges To EIR For Mixed Use 5M Project In Downtown San Francisco

In a partially published opinion filed January 30, 2019, the First District Court of Appeal (Div. 1) affirmed a judgment denying a writ petition challenging the City of Berkeley’s approval of use permits for three single-family homes on three contiguous hillside parcels.  The Court upheld the City’s use of the CEQA Guidelines § 15303(a) (Class 3) categorical exemption for new construction of small structures, including “up to three single-family residences” in “urbanized areas.”  Berkeley Hills Watershed Coalition v. City of Berkeley (Matthew Wadlund, et al., Real Parties in Interest) (2019) 31 Cal.App.5th 880.

Continue Reading First District Upholds CEQA Class 3 Categorical Exemption For Single Family Residence Projects In Berkeley Hills, Rejects Claim That “Location” Exception Applies Based On Site’s Location Within Mapped Earthquake Fault And Landslide Areas