In an opinion filed November 29, and belatedly ordered published on December 22, 2016, the First District Court of Appeal affirmed the trial court’s denial of a writ petition challenging on CEQA grounds the San Francisco Municipal Transportation Agency’s (Muni) approval of a light rail construction contract. The Committee For Re-evaluation of the T-Line Loop, et al v. San Francisco Municipal Transportation Agency, et al (Mitchell Engineering, Real Party in Interest) (1st Dist., Div. 2, 2016) 6 Cal.App.5th 1237. The contract was to install the final 900 feet of light rail line needed to complete a partially constructed “Loop” around a City block in the Dogpatch neighborhood, so that trains on the T-Third light rail line will be able to turn around and lay over to meet service needs for special events and peak travel periods. In approving the contract, Muni relied on the 1998 EIS/EIR (FEIR) certified for the two-phase Third Street Light Rail Project to connect southeastern San Francisco by light rail to the rest of the City; it also relied on SF Planning Department statements in 2012 and 2014 that the FEIR analyzed the Loop and that no further CEQA analysis was needed because there had been no substantial changes in the project or the area.
CEQA Does Not Require Local Lead Agency To Provide For Administrative Appeal To Elected Body of Nonelected Body’s Decision That Project Changes Require No Subsequent Review
By Arthur F. Coon on
In an opinion filed December 7, and later ordered published on December 16, 2016, the Fourth District Court of Appeal affirmed a judgment denying a writ petition on the “single legal issue” whether plaintiffs were entitled under Public Resources Code § 21151(c) (and a municipal code section with essentially the same content) to an appeal of a planning commission’s “substantial conformance review” (SCR) determination to the city council. (San Diegans for Open Government et al v. City of San Diego (Sunroad Enterprises et al, Real Parties in Interest) (4th Dist., Div. 1, 2016 ) 6 Cal.App.5th 995.) The SCR decision found that changes in an already CEQA-reviewed and approved mixed-use development project were consistent with previous CEQA documents and did not require a new environmental document. Because such a determination was not one of the decisions expressly listed in Section 21151(c) as appealable of right to the lead agency’s elected decision making body, and there was no independent right to such an appeal order the City’s municipal code, the City properly refused to process plaintiffs’ attempted administrative appeal of the planning commission’s decision.
Slam Dunked! First District Rejects All CEQA And Land Use Challenges To Golden State Warriors Event Center Project And EIR In Expedited Litigation
In a lengthy published opinion filed November 29, 2016, the First District Court of Appeal rejected all legal challenges to the City of San Francisco’s Final Supplemental Environmental Impact Report (FSEIR) and related land use approvals for a 488,000-square-foot multipurpose event center project on 11 acres in the City’s Mission Bay South redevelopment plan area (the “Project”). Mission Bay Alliance, et al. v. Office of Community Investment and Infrastructure, et al. (GSW Arena LLC, et al., Real Parties in Interest (2016 1st Dist., Div. 3) 6 Cal.App.5th 160.) The event center would host home games of the Golden State Warriors NBA basketball team, concerts, conferences, conventions and other sporting and cultural events, and the overall Project would also include “a variety of mixed-use structures, including two 11-story office and retail buildings, parking facilities, and 3.2 acres of open space.”
Wither Subsequent Review? Supreme Court Again Weighs In On CEQA Subsequent Review Standards Following Negative Declarations – Grants, Retransfers, and Depublishes First District’s Coastal Hills Rural Preservation Decision
By Arthur F. Coon on
On November 22, 2016, the California Supreme Court issued a significant Order granting review in Coastal Hills Rural Preservation v. County of Sonoma (2016) 2 Cal.App.5th 1234, and also transferring the matter back to the Court of Appeal (First Appellate District, Div. 1) for reconsideration in light of Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2016) 1 Cal.5th 937, 957-959, fn. 6, and CEQA Guidelines § 15384. The high court further ordered the First District’s opinion to be depublished, and it is therefore no longer citable as binding legal precedent. Both orders were unanimous.
Sacramento Residential Infill Project EIR Violated CEQA By Basing Less-Than-Significant Traffic Impact Finding Solely On Compliance With General Plan Policy Allowing LOS F
On November 7, 2016, the Third District Court of Appeal filed a published opinion mostly upholding the EIR for a 48.75-acre, 328-unit residential infill project (known as McKinley Village) against various CEQA challenges, and finding the Project to be consistent with the City of Sacramento’s general plan. East Sacramento Partnership for a Livable City v. City of Sacramento (Encore McKinley Village, LLC, Real Party in Interest) (3d Dist. 2016) 5 Cal.App.5th 281. In a pointed reminder that a perfectly CEQA-compliant EIR for a large infill project is difficult to prepare, however, the Court found merit in a single argument of the petitioner and appellant neighborhood group, ESPLC – its argument that “the EIR ignored [certain] significant traffic impacts.” Specifically, the EIR failed to adequately support its less-than-significant (LTS) impact conclusion concerning such impacts, in light of a substantial project-caused degradation in level of service (LOS) at affected intersections and streets that was nonetheless compliant with the General Plan’s policy that LOS F was acceptable for the area. Accordingly, the Court of Appeal reversed the trial court’s judgment upholding the EIR, and ordered it to issue a writ directing the City to set aside its certification and correct this lone deficiency prior to considering recertification.
Blowing Smoke About Impacts? Fourth District Rejects Speculative CEQA Challenge to San Diego’s Medical Marijuana Consumer Cooperative Ordinance, Holds Zoning Ordinances Are Not Necessarily CEQA “Projects”
By Arthur F. Coon on
In a 29-page published opinion filed October 14, 2016, the Fourth District Court of Appeal dispensed some good news to municipalities desiring to reasonably regulate retail medical marijuana facilities within their jurisdictional boundaries. In Union of Medical Marijuana Patients, Inc. v. City of San Diego (4th Dist., Div. 1, 2016) 4 Cal.App.5th 103, Case No. D068185, the Court affirmed the trial court’s judgment denying a writ petition on the basis that the City of San Diego’s ordinance regulating the establishment and location of medical marijuana consumer cooperatives was not a “project” subject to CEQA.
Governor (Still) Not A Public Agency Subject To CEQA, Holds Third District In Indian Gaming Case
By Arthur F. Coon on
The Federal Indian Gaming Regulatory Act (“IGRA”; 25 U.S.C. § 2701 et seq.) allows gaming on Indian lands acquired by the Secretary of the Interior (Secretary) in trust for a tribe’s benefit after October 17, 1988, if, among other things, the Secretary determines it would be in the tribe’s best interest and not detrimental to the surrounding community, and the governor of the state where the land is located concurs with the determination. (25 U.S.C., § 2719(b)(1)(A).) Further, casino-style gaming may be conducted if authorized by a tribal-state compact, and California Constitutional and statutory law designates the Governor as the state officer authorized to negotiate and execute such compacts. (Cal. Const., art. IV, § 19(f); Gov. Code, § 12012.5(d).)
Fifth District Denies Rehearing, Corrects Published Opinion And Judgment In Consolidated City of Ceres Appeals To Reflect Wal-Mart’s Cost Award As Prevailing Party On Costs Appeal
By Arthur F. Coon on
It’s always nice not to lose a hard-won prevailing party cost award due to a court’s imprecise use of party designations – which can get confusing where there are multiple appeals at issue. On October 4, 2016, the Fifth Appellate District Court of Appeal issued a two-page Order entitled “Order Modifying Opinion and Denying Rehearing [Includes Change In Judgment]” in the recently decided consolidated appeals in the Citizens for Ceres v. City of Ceres litigation. The minor change made in the last sentence of the opinion’s disposition clarified that: (1) Respondents (City of Ceres and Real Party Wal-Mart Stores, Inc., et al.) were awarded costs as prevailing parties in the merits appeal, which affirmed the trial court’s judgment denying the writ petition challenging the EIR, statement of overriding considerations, and approval of Wal-Mart’s controversial Ceres project; and (2) Appellants (Wal-Mart, et al.) were awarded costs as prevailing parties in the separate costs appeal, which resulted in the published portion of the opinion reversing the trial court’s order taxing costs of $44,889.71 claimed by Wal-Mart for amounts it had to reimburse the City for administrative record preparation. My post on the Court’s partially published September 12, 2016 opinion in the case can be found here.
Supreme Court Addresses CEQA Subsequent Review Rules in San Mateo Gardens Case
By Arthur F. Coon on
Posted in CEQA Guidelines, Legislation, Litigation, Mitigation, Reform, Standard of Review, Subsequent Review
“… like all things in life, project plans are subject to change.”
(Slip Opn. of Kruger, J., p. 4.)
The California Supreme Court provided needed clarification to some aspects of the operation of CEQA’s “subsequent review” rules (Pub. Resources Code, § 21166; CEQA Guidelines, § 15162) in its highly anticipated opinion, filed on September 19, 2016, in Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2016) 1 Cal.5th 937. CEQA’s subsequent review rules embody CEQA’s concerns for finality and efficiency, and implement a presumption against requiring a subsequent EIR for a modified project that has previously undergone CEQA review – i.e., they govern whether an EIR will be required, or another type of CEQA document (or no further documentation) will suffice, when changes are proposed in a project for which an initial CEQA review has been completed. (Slip Opn., p. 12.) I won’t reiterate this case’s facts and relevant background history (including oral argument and post-argument briefing in the Supreme Court) which can be found (in reverse chronological order) in my prior blog posts of July 8, May 12, May 4, April 26, 2016, and March 25, 2014. This post focuses on the legal rules and standards announced by the Court and their potentially significant implications for lead agencies and project proponents who consider approval of changes to a development project that has already undergone and survived a full CEQA review.
Continue Reading Supreme Court Addresses CEQA Subsequent Review Rules in San Mateo Gardens Case
Neither CEQA Administrative Record Preparation Statute nor Case Law Precludes Award of Costs to Prevailing Real Party who Reimburses Lead Agency Its Costs of Record Preparation
By Arthur F. Coon on
In the published portion of an opinion filed September 12, 2016, the Fifth District Court of Appeal reversed the trial court’s order taxing costs in the amount of $44,889.71 which were claimed by prevailing real party in interest Wal-Mart in connection with preparation of the administrative record. The costs were incurred by respondent and lead agency City of Ceres when it directed its outside counsel to prepare the record in a CEQA action challenging a Wal‑Mart Supercenter project, and were reimbursed by real party Wal-Mart pursuant to an agreement with the City that required the project applicant to reimburse it for all expenses arising from legal challenges to the project. Citizens For Ceres v. City of Ceres (Wal-Mart Stores, Inc., et al., Real Parties in Interest) (2016) 3 Cal.App.5th 237.