“It ain’t over ‘til it’s over.” Yogi Berra and Lenny Kravitz

In a unanimous opinion filed on June 6, 2024, the California Supreme Court reversed the judgment of the First District Court of Appeal in the controversial “People’s Park” case, thus upholding the Regents’ 2021 Long-Range Development Plan (LRDP) EIR and clearing the legal path for UC Berkeley’s residential development at the People’s Park site.  Make UC A Good Neighbor v. Regents of University of California (2024) ____ Cal.5th ____.  (My prior posts on the Court of Appeal’s decision and the Supreme Court’s grant of review in this case can be found here (3/3/23 post) and here (5/21/23 post).)Continue Reading Supreme Court Holds Legislature’s Case-Driven CEQA Amendments Require Judgment Upholding UC Berkeley’s 2021 Long-Range Development Plan EIR and People’s Park Housing Project Against Claims of Failures to Analyze Student “Social Noise” and Alternative Locations

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 an opinion originally filed on September 8, and subsequently modified and certified for partial publication on October 4, 2023, the Sixth District Court of Appeal reversed the trial court’s judgment granting a writ setting aside Monterey County’s issuance of a permit to investor-owned public utility/water supplier California-American Water Company (“Cal-Am”) to construct a desalination plant and related facilities needed as one component of Cal-Am’s Water Supply Project.  Marina Coast Water District v. County of Monterey (California-American Water Company, Real Party in Interest) (2023) 96 Cal.App.5th 46.  On Cal-Am’s appeal, the Court held the trial court erred in finding the County’s statement of overriding considerations prejudicially inadequate for not addressing the uncertainty created by the City of Marina’s (“City”) denial of a coastal development permit (“CDP”) – later granted with conditions by the Coastal Commission on appeal – for the drilling of intake wells in coastal zone aquifers to supply the plant.  On project opponent Marina Coast Water District’s (“MCWD”) cross-appeal, the Court held that County’s decision not to require a subsequent EIR and its statement of overriding considerations were both supported by substantial evidence and (in an unpublished portion of its opinion not further discussed here) that County’s approval did not violate its own general plan.Continue Reading Sixth District Reverses Writ, Upholds Responsible Agency Monterey County’s Approval of Desalination Plant In Reliance on CPUC’s EIR For Multi-Component, Cross-Jurisdictional Water Supply Project; Court Rejects CEQA Challenges Based On County’s Decision Not to Prepare Subsequent EIR and Allegedly Inadequate Statement of Overriding Considerations

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

“I fought the law and the law won” – The Crickets

In an opinion filed July 19, and later ordered published on August 16, 2023, the Second District Court of Appeal (Div. 6) reversed the trial court’s grant of a preliminary injunction in a CEQA action enjoining the Santa Barbara County Road Commissioner from enforcing public laws by removing unpermitted encroachments from a public right-of-way.  Christopher Anderson, et al. v. County of Santa Barbara, et al. (2023) 94 Cal.App.5th 554. The public officer’s law enforcement actions were held to be exempt from CEQA; to have independent utility apart from any alleged larger, “piecemealed” project evading CEQA review; and not to be subject to the “unusual circumstances” exception to applicable categorical exemptions.  While the Court was careful to fully analyze all of petitioners’ CEQA arguments, its opinion also offered numerous other reasons why the trial court erred and exceeded its lawful authority under applicable legal principles in issuing the preliminary injunction.Continue Reading Second District Reverses Preliminary Injunction, Holds CEQA Cannot Trump Santa Barbara County’s Authority To Remove Unpermitted Encroachments Placed In Public Right-Of-Way By Adjacent Landowners

In a published opinion filed August 14, 2023, the Third District Court of Appeal reversed a judgment that denied a petition for writ of mandate challenging the State Department of Public Health’s (Department) approval of Real Party in Interest Harm Reduction Coalition of Santa Cruz County’s (real party) needle exchange program.  Grant Park Neighborhood Association Advocates v. Department of Public Health, et al. (2023) 94 Cal.App.5th 478.  In ordering a writ to issue to set aside the approval, the Court of Appeal agreed with petitioner and appellant Grant Park’s first three arguments based on the Department’s prejudicial violations of Health and Safety Code § 121349’s required procedures; it declined to reach appellant’s separate CEQA argument seeking the same relief, however, since it had already granted all requested relief under the other statutory provisions.  However – and as most relevant to this blog – the Court also noted that following the trial court’s judgment the Legislature enacted a 2021 statutory amendment exempting the Department’s approval of needle exchange operations from CEQA.Continue Reading Third District Declines To Reach CEQA Exemption Claim In Reversing On Other Grounds Judgment Upholding State Department of Public Health’s Approval of Santa Cruz County Needle Exchange Program But Notes New Statutory CEQA Exemption Now Exists

In a published opinion filed June 23, 2023, the Fourth District Court of Appeal (Div. 1) affirmed a judgment granting a writ of mandate directing the City of San Diego (City) to set aside its approvals of an ordinance submitting to the voters a ballot measure that would exclude the Midway-Pacific Highway Community Plan Area from the City’s 30-foot height limit on construction of buildings in the Coastal Zone.  The Court held the City could not rely on a 2018 program EIR (PEIR) certified for an update of the area’s community plan as CEQA compliance because the PEIR did not contemplate or analyze the environmental impacts of removing the height limit and substantial evidence supported a fair argument that its removal may have significant unexamined impacts on views.  Save Our Access v. City of San Diego (2023) 92 Cal.App.5th 819.Continue Reading Ocean Views Matter: Fourth District Holds Program EIR For Community Plan Update Didn’t Consider Potentially Significant View Impacts of City of San Diego’s Subsequent Approval of Ballot Measure Excluding Entire Area From City’s 30-Foot Coastal Zone Height Limit

In an opinion filed April 27, and certified for partial publication on May 19, 2023, the First District Court of Appeal (Div. 1) vacated the trial court’s order granting a writ directing the University of California’s Regents (Regents) to decertify a 2018 Supplemental EIR (2018 SEIR) for a campus development project and to suspend increases in student enrollment pending CEQA compliance; it further directed the trial court to dismiss the petition, which it held was largely mooted by the Regents’ certification of a 2021 EIR and the passage of CEQA amendments via SB 118, events that combined to preclude the Court’s ability to grant effective relief.  Save Berkeley’s Neighborhoods v. The Regents of the University of California, et al. (2023) 91 Cal.App.5th 872. Continue Reading First District Holds Increased Enrollment-Related CEQA Challenges To UC Regents’ 2018 SEIR For Berkeley Campus Development And Minor LRDP Amendment Are Mooted By Superseding 2021 LRDP Update EIR And Passage Of SB 118

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

On June 1, 2022, the Sixth District Court of Appeal, in response to a request for publication, ordered that its previously unpublished May 9, 2022 opinion in Committee for Sound Water and Land Development v. City of Seaside (KB Bakewell Seaside Venture II, LLC, Real Party in Interest) (2022) ___ Cal.App.5th ___ be published.  Matt Henderson’s and my May 20, 2022 post discussing and analyzing the Court’s decision, which is now precedent and can be cited as such, can be found here.
Continue Reading Sixth District Belatedly Orders Published Its Opinion Upholding Constitutionality Of Judicial Council’s Emergency Rule Altering CEQA’s Statutes Of Limitations