On November 10, 2020, the California Supreme Court – after briefly raising Petitioners’ hopes by extending the time to consider granting review – finally slammed the door shut on further litigation over a recent Fourth District Court of Appeal decision, issuing an order denying the three petitions for review filed by the parties, as well as a request for depublication filed by non-party City of Los Angeles. Golden Door Properties v. S.C (County of San Diego) Case No. S264324. The Court of Appeal’s Golden Door decision, which held lead agencies must retain and not destroy writings within the scope of CEQA’s mandatory and broadly inclusive administrative record statute (Pub. Resources Code, § 21167.6), notwithstanding assertedly contrary record-retention policies, will thus remain intact as published precedent.
Keeping the “Golden Door” Cracked Open: California Supreme Court Extends Period to Consider Review of CEQA Administrative Record Case
By Arthur F. Coon on
On October 23, 2020, the California Supreme Court issued an order extending until December 7, 2020, or the date upon which review is either granted or denied, the time for granting or denying review in Golden Door Properties, LLC, et. al. v. Superior Court (County of San Diego et. al., Real Parties in Interest) (4th Dist. 2020) 52 Cal.App.5th 837. The Court of Appeal’s decision, originally published on July 30, and modified upon denial of rehearing on August 25, 2020, held that a lead agency is required to retain, and may not destroy, writings within the scope of CEQA’s mandatory and broadly-inclusive administrative record statute, Public Resources Code § 21167.6.
Governor Extends Conditional Suspension of Requirements Related to Posting CEQA Notices with County Clerks
By Arthur F. Coon & Arielle Harris on
In late September, Governor Newsom signed Executive Order N-80-20 (“EO 80-20”), which, among other things, extends the protections of a handful of previously issued executive orders related to COVID-19. As relevant to CEQA practitioners, EO 80-20 extends the previous suspension of CEQA’s requirements for filing of specified notices with the county clerk and the posting of such notices in the county clerk’s office.
Miller Starr Regalia Attorneys Speaking at Upcoming CEQA and Land Use Programs in November
By Arthur F. Coon & Arielle Harris on
Posted in Land Use, Uncategorized
During the month of November, Miller Starr Regalia land use attorneys will be providing updates on housing, land use, and CEQA at three upcoming virtual programs.
Third District Dismisses Appeal In CEQA Case As Moot Where Plaintiff Failed To Timely Seek Or Obtain Preliminary Injunction And Project Construction Was Completed Before Trial
By Arthur F. Coon on
In an opinion originally filed on August 26, and later certified for publication on September 16, 2020, the Third District Court of Appeal dismissed a plaintiff group’s (“Parkford”) appeal from an adverse judgment in a CEQA/land use case as moot. Parkford Owners for a Better Community v. County of Placer (Silversword Properties, LLC, et al., Real Parties in Interest) (2020) 54 Cal.App.5th 714.
Legislature Enacts SB 288 to Provide New and Expanded CEQA Exemptions for Sustainable Public Transportation Projects
By Arthur F. Coon on
Senator Scott Weiner’s Senate Bill (SB) 288 has passed both houses of the California Legislature, and was enrolled for proofing on September 4, 2020, prior to its delivery to the Governor for signature. The new law’s prefatory declarations reflect a stated intent to expand and enact CEQA exemptions to reduce the time and cost of delivering transit and sustainable transportation projects in California, and thereby boost the COVID-damaged economy while furthering the State’s environmental goals.
Hitting A CEQA Snag: Third District Affirms Rejection of Statutory Road Abandonment And Brown Act Challenges And Inverse Condemnation Claim, But Holds Placer County Violated CEQA By Adopting Addendum To Wrong Project’s EIR
By Arthur F. Coon on
Posted in Baseline, Brown Act, Land Use, Litigation, Project Description, Standard of Review, Subsequent Review, Takings
In a published opinion filed on August 17, 2020, the Third District Court of Appeal mostly affirmed the trial court’s judgment upholding Placer County’s partial abandonment of public easement rights in an emergency access/public transit road connecting two Lake Tahoe-area residential subdivisions; the County took the action to resolve disputes that had arisen after one subdivision’s residents began using the road as an all-purpose public road and short-cut through the other subdivision to get to Northstar-at-Tahoe. Martis Camp Community Association v. County of Placer, et al. (Retreat at Northstar Association, et al., Real Parties in Interest) (2020) 53 Cal.App.5th 569. My partner Bryan Wenter’s post covers the land use issues at the heart of the case, and can be found here; readers should consult that post for the case’s factual background and primary holdings. This post covers the CEQA issue at the “tail end” of the opinion, which involved application of CEQA’s “subsequent review” rules to County’s partial road abandonment project.
Supreme Court Holds Stanislaus County Well Permit Decisions Under State Standards Are Neither Categorically Ministerial Nor Categorically Discretionary In Nature; Rather, Whether CEQA-Triggering Discretion Exists Must Be Determined On Case-By-Case Basis
By Arthur F. Coon on
On August 27, 2020, the California Supreme Court filed its unanimous opinion, authored by Justice Corrigan, in Protecting Our Water and Environmental Resources v. County of Stanislaus (2020) 10 Cal.5th 479 (“POWER”). The POWER decision is a “mixed bag” for the parties to the litigation themselves: the Court rejected both (a) the County’s position that all its well permits are ministerial approvals exempt from CEQA, and (b) the environmental plaintiffs’ converse position that all such permits are discretionary approvals subject to CEQA. For non-parties, the case’s significance lies in its elucidation of the legal rules and principles governing the key distinction between discretionary and ministerial projects – a fundamental distinction that determines CEQA’s threshold applicability to agency approvals and actions. In following appellate precedent focusing not on permitting ordinances and regulations as a whole and in the abstract, but more granularly on the specific regulatory controls applicable to a particular permit application, the high Court in POWER eschews the “all or nothing” approach urged by the parties and endorses a more nuanced and contextual analysis that is both reasonable and fully consonant with CEQA and its objectives.
Burnishing the “Golden Door”: Fourth District Modifies Recent Opinion Requiring Lead Agency Preservation of CEQA Administrative Record Documents, Denies Petitions for Rehearing and Leaves Judgment Unchanged
By Arthur F. Coon on
In a detailed 6-page order, issued by Presiding Justice McConnell and filed on August 25, 2020, the Fourth District Court of Appeal denied three petitions for rehearing, and “polished up” its lengthy published opinion filed at the end of last month in Golden Door Properties, LLC et al v. Superior Court of San Diego (County of San Diego, et al, Real Parties in Interest) (4th Dist. 2010) 52 Cal.App.5th 837. (My August 5, 2020 post on the case can be found here.) Most of the Court’s changes were minor and technical in nature, pertaining more to issues of concern to the parties on remand, rather than its major precedential holdings, but a few were noteworthy.
“For the Record”: Fourth District Holds CEQA’s “Mandatory” And “Broadly Inclusive” Administrative Record Statute Requires Lead Agency To Retain Documents Within Its Scope And Not Destroy Them Prior To Record Preparation
By Arthur F. Coon on
In a 77-page published opinion filed on July 30, 2020, the Fourth District Court of Appeal (Div. One) issued a writ of mandate largely overturning San Diego Superior Court rulings denying plaintiffs’ motions to compel discovery and to augment the administrative record in a CEQA case; the disputes arose from Real Party San Diego County’s admitted deletion of email documents as “non-official records” pursuant to its records retention policies. Golden Door Properties, LLC et al. v. Superior Court of San Diego (County of San Diego, et al., Real Parties in Interest) (4th Dist. 2020) 52 Cal.App.5th 837.