In 15-page opinion filed on September 15, and later certified for publication on October 16, 2017, the First District Court of Appeal affirmed the trial court’s judgment denying a writ petition challenging the Judicial Council of California’s (“Judicial Council”) EIR for its project to relocate and consolidate El Dorado County Superior Court operations into a single new building on the outskirts of Placerville. Placerville Historic Preservation League v. Judicial Council of California (County of El Dorado, et al., Real Parties In Interest) (2017) 16 Cal.App.5th 187. The Court of Appeal held that substantial evidence supported the EIR’s conclusion that “the possible economic impact of moving judicial activities from the downtown courthouse … was not likely to be severe enough to cause urban decay in downtown Placerville.” It also held that the Council did not need to adopt mitigation mandating re-use of the courthouse to support this conclusion.
Unique, But Not Unusual: First District Affirms CEQA Exemptions and General Plan Consistency Finding For Three-Unit Infill Condo Project on San Francisco’s Telegraph Hill
By Arthur F. Coon on
While “agree[ing] with appellant that Telegraph Hill is outstanding and unique in a city of outstanding and unique places[,]” the First District Court of Appeal nonetheless affirmed the trial court’s order denying plaintiff/appellant neighborhood group’s mandamus petition challenging the City of San Francisco’s approval of a 3-unit condominium project there on CEQA and general plan consistency grounds. Protect Telegraph Hill v. City and County of San Francisco (2017) 16 Cal.App.5th 261. In a 15-page opinion originally filed September 14, but belatedly ordered published on October 13, 2017, the Court upheld the City’s findings that the project, which involved renovation of an existing deteriorated small cottage and construction of a new 3-dwelling unit residential structure, was categorically exempt from CEQA and consistent with the City’s general plan and planning code.
Governor Brown Vetoes Flawed AB 890, Signals Preference for More Comprehensive CEQA Reform
By Arthur F. Coon on
Posted in Affordable Housing, CEQA Guidelines, Exemptions, Land Use, Legislation, Police Power, Preemption, Reform
On October 15, 2017, Governor Edmund G. Brown, Jr. sent a veto letter to California State Assembly Members, returning a controversial and flawed proposed land use bill – AB 890 – without his signature. My partner Bryan Wenter and I authored a post here last month detailing the many problems we saw with the bill. (See “The Opposite of CEQA Reform: Legally Flawed AB 890 Would Expand Opportunities For CEQA Litigation Abuse While Abridging Constitutional Local Initiative Rights,” by Arthur F. Coon and Bryan W. Wenter, AICP, posted September 19, 2017.)
Fortunately, Governor Brown was receptive to the bill’s many critics, and struck a blow for local land use control, local initiative rights, CEQA reform and commence sense by vetoing it. His short letter to Assembly members, which can be found here, states in pertinent part that “[i]nstead of the piecemeal approach taken in this bill, I prefer a more comprehensive CEQA review, which takes into account both the urgent need for more housing and thoughtful environmental analysis. Hear, hear!
First District Rejects CEQA Challenges to SWRCB’s Revised Environmental Document and Approval of Northern California Coastal Stream Policy
In a published opinion filed September 28, 2017, the First District Court of Appeal affirmed the Alameda County Superior Court’s judgment denying appellant Living Rivers Council’s (LRC) writ petition challenging the State Water Resources Control Board’s (the “SWRCB” or “Board”) approval of a policy designed to maintain instream flows in coastal streams north of San Francisco. Living Rivers Council v. State Water Resources Control Board (1st Dist., Div. 5, 2017) 15 Cal.App.5th 991. The Court of Appeal upheld the SWRCB’s Revised Substitute Environmental Document (RSED) against LRC’s CEQA challenges, which related to the RSED’s analysis of potential indirect environmental effects of surface water users switching to groundwater pumping as a result of the policy.
As relevant legal background, the SWRCB administers the State’s water resources and has permitting authority over diversions from surface waters and subterraneous streams that flow through known and definite channels, but it lacks permitting authority over percolating groundwater. It has authority to prevent unreasonable or wasteful water use regardless of source. Legislation enacted in 2004 (Wat. Code, § 1259.4) requires the SWRCB to adopt principles and guidelines for maintaining instream flows of Northern California coastal streams.
First District Holds CEQA’s Substantive Requirements Apply to Environmental Documentation of State Agency Acting Under Certified State Regulatory Program, Directs Issuance of Writ Setting Aside Inadequately Reviewed Pesticide Label Approvals
In a published opinion filed September 19, 2017, the First District Court of Appeal reversed the trial court’s denial of a writ petition challenging defendant California Department of Pesticide Regulation’s (“Department”) approval of label amendments for two pesticides containing an active ingredient toxic to honeybees. The Court held the Department’s environmental review was deficient in failing to adequately address feasible alternatives, lacking adequate baseline information, and lacking an adequate cumulative impacts analysis, and that its public reports were so inadequate and conclusory as to render public comment effectively meaningless and require recirculation. Pesticide Action Network North America v. California Department of Pesticide Regulation (Valent U.S.A. Corporation, et al., Real Parties In Interest) (1st Dist., Div. 3, 2017) 15 Cal.App.5th 478.
First District Upholds CEQA Categorical Exemption for Approval of Planned Parenthood Clinic in City of South San Francisco, Clarifies Implied Finding of No Exceptions is Analyzed for Record Support on Narrowest Possible Ground
By Arthur F. Coon on
When a lead agency finds a project approval to be categorically exempt from CEQA, this determination at the initial step of CEQA’s multi-tiered process necessarily includes an implied finding that no exceptions to the categorical exemption are applicable. A party challenging an agency’s categorical exemption determination on the basis that the “unusual circumstances” exception applies generally has the burden to show both (1) unusual circumstances (i.e., the project has some feature distinguishing it from others in the exempt class, such as size or location), and (2) “a reasonable possibility of a significant effect [on the environment] due to [those] unusual circumstance[s].” (Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1105, 1115.)
But how does a court review an “unusual circumstances” challenge to a categorical exemption where the agency has made no express findings on these elements and must thus rely on implied findings to uphold its determination? In a published opinion filed September 18, 2017, the First District Court of Appeal answered this important question in the course of affirming a judgment denying a writ petition that challenged the City of South San Francisco’s (City) conditional-use permit (CUP) for conversion of an office building to a Planned Parenthood medical clinic. Respect Life South San Francisco v. City of South San Francisco (Planned Parenthood Mar Monte, Inc., Real Party In Interest) (1st Dist., Div. 1, 2017) 15 Cal.App.5th 449. While the City’s categorical exemption in this case was upheld based on an implied finding, the opinion’s most important takeaway for local agencies (and project proponents) is that reliance on such a finding presents far more litigation risk than if appropriate express findings are made.
The Opposite of CEQA Reform: Legally Flawed AB 890 Would Expand Opportunities for CEQA Litigation Abuse While Abridging Constitutional Local Initiative Rights
By Arthur F. Coon & Bryan W. Wenter, AICP on
Posted in Affordable Housing, CEQA Guidelines, Exemptions, Land Use, Legislation, Police Power, Preemption, Reform
AB 890 (Medina – D), recently sent to Governor Brown for action by October 15, seeks to amend Government Code § 65867.5 and to add §§ 65363 and 65850.10 to prevent development agreements and certain types of land use planning and zoning legislation from being enacted by local voter-sponsored land use initiatives. The bill would substantially abridge the local electorate’s constitutionally guaranteed and reserved initiative power by purporting to exclusively “delegate” specified exercises of legislative authority to local governing bodies – city councils and county boards of supervisors – and thus concomitantly eliminating local voters’ long-held and until now unassailable rights to directly legislate in such areas pursuant to California Constitution, Article II, Section 11, and the procedures of the Elections Code.
The bill’s stated purpose is to ensure the enumerated types of local development proposals are subjected to CEQA review – and, implicitly, to provide expanded opportunities for litigation under a flawed CEQA statute the legislature continues to refuse to meaningfully reform – by annulling the constitutional right of local voters to directly legislate in these areas, a presently enjoyed and “jealously guarded” right the exercise of which is not currently subject to CEQA review. Long story short: AB 890 is a bad bill that proposes a cure far worse than the perceived disease. As will be apparent from the discussion of its provisions below, the proposed law is deeply flawed, of doubtful constitutionality, and the opposite of CEQA reform.
Sixth District Holds Project’s Consistency with General Plan Is Not a CEQA Issue, Upholds Trial Court’s Interlocutory Remand for County Board to Clarify Consistency Findings, and Affirms Judgment Denying Writ Petition Alleging General Plan and CEQA Challenges to Shopping Center Project
By Arthur F. Coon on
In an opinion originally filed on July 31, and belatedly ordered partially published on August 24, 2017, the Sixth District Court of Appeal affirmed the trial court’s judgment denying a writ petition brought by a citizens group (Highway 68) on CEQA and Planning and Zoning Law grounds, and upheld the Monterey County Board of Supervisors’ 2012 approval of a shopping center project. The Highway 68 Coalition v. County of Monterey, et al. (Omni Resources LLC, Real Party in Interest) (6th Dist. 2017) 14 Cal.App.5th 883.
In relevant (published) part, the Court upheld the trial court’s interlocutory remand to the County’s Board of Supervisors to clarify or make further findings required to demonstrate the project’s consistency with certain provisions of County’s General Plan requiring express, evidence-supported findings that the project has “a long-term sustainable water supply”; in so doing it rejected arguments that this procedure violated CEQA’s remedies statute (Public Resources Code, § 21168.9), which generally prescribes writ relief for CEQA violations. (The much lengthier, unpublished portion of the Court’s opinion, which will not be addressed in detail in this post, rejected Highway 68’s remaining non-general plan CEQA arguments alleging: violations of due process in the remand proceedings; CEQA violations in the EIR’s analysis of the Project’s water rights, and water balance, demand and recharge scheme, groundwater/soil contamination, and traffic analysis methodology; and violation of CEQA’s prohibition on “segmentation” or “piecemealing” of environmental review.)
Fourth District Rejects CEQA Challenge to College District’s Entry into Land Acquisition Agreement Prior to Preparing EIR Due to Plaintiffs’ Failure to Exhaust and Based on Merits
In a published decision filed August 8, 2017, the Fourth District Court of Appeal affirmed the trial Court’s judgment dismissing a CEQA action brought by two individuals (“Appellants”) against the Mt. San Jacinto Community College District (“District”). Bridges v. Mt. San Jacinto Community College District (Riverside County Regional Park & Open- Space District, Real Party in Interest) (4th Dist. 2017) 14 Cal.App.5th 104. Appellants challenged the District’s entry into a purchase agreement to buy from a regional park district a plot of vacant land for potential future use as a new campus, alleging this action violated CEQA because the District had not yet prepared an EIR for the potential new campus project. (The District was in the process of preparing an EIR, during the pendency of other litigation over an earlier option agreement on the property, but it “paused” that process due to the other litigation while determining it would complete the EIR before entering into escrow on the property.) Appellants also claimed the District violated CEQA by failing to adopt local CEQA implementing guidelines.
The Court of Appeal held Appellants failed to exhaust their administrative remedies prior to filing suit or to demonstrate any excuse for not doing so; alternatively, it held that their claims lacked substantive merit.
California Supreme Court Holds CEQA Applies to State Entity’s Railroad Project on State-Owned Rail Line as Act of “Self-Governance”, Not “Regulation” That Would Be Preempted by Federal Law
By Arthur F. Coon on
On July 7, 2017, the California Supreme Court filed its 69-page opinion, written by Chief Justice Cantil-Sakauye and joined by five other justices, in Friends of the Eel River v. North Coast Railroad Authority, et al. (2017) 3 Cal.5th 677. The Court held that the Interstate Commerce Commission Termination Act of 1995 (“ICCTA”; 49 U.S.C., § 10101 et seq.) does not exempt the application of CEQA to a railroad project undertaken by a state public entity, defendant North Coast Railroad Authority (NCRA), on a rail line also owned by that entity. The Court acknowledged that ICCTA’s federal regulatory scheme would preempt a state’s imposition of environmental regulation such as CEQA on a privately owned railroad. That is because settled federal law holds ICCTA preempts a state’s imposition of “environmental preclearance requirements” that have the effect of preventing or delaying the operation of a privately owned railroad. But the Court also held that, as applied to govern the conduct of subdivisions of the sovereign state, the CEQA process constitutes an act of “self-governance” and not preempted “regulation” within the meaning of ICCTA.