On September 9, 2016, the First District Court of Appeal (Division 5) filed an “Order Modifying Opinion and Denying Rehearing [No Change In Judgment]” in California Building Industry Association v. Bay Area Air Quality Management District, Case. Nos. A135335 & A136212. My post on the Court of Appeal’s published opinion in the case, which was filed on August 12, 2015 following remand from a landmark Supreme Court decision holding that “CEQA does not generally require an agency to consider the effects of existing environmental conditions on a proposed project’s future users or residents” (California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, 392), can be found here.
Sixth District Rejects SMARA And CEQA Challenges To Permanente Quarry Reclamation Plan Amendment And Related EIR
By Arthur F. Coon on
In a published opinion filed August 31, 2016, the Sixth Appellate District Court of Appeal rejected claims under CEQA and the Surface Mining and Reclamation Act (“SMARA”; Pub. Resources Code, §§ 2700, et seq.), and affirmed the denial of a writ petition challenging Santa Clara County’s 2012 EIR and related approval of a reclamation plan amendment for the Permanente Quarry. Bay Area Clean Environment, Inc. v. Santa Clara County (Lehigh Southwest Cement Company, et al., Real Parties in Interest) (2016) 2 Cal.App.5th 1197, 2016 WL 9540085. The plan amendment governs (over a 20-year period) the closing and reclaiming of the Quarry, which has conducted limestone and aggregate surface mining operations since 1903 in the unincorporated County. The Quarry has expanded from about 1,300 acres when the Permanente Corporation purchased it in 1939 to its current 3,510 acres. It includes a central rock/limestone mining pit, a rock crushing area, and administrative offices all located within the upper portion of the Permanente Creek watershed; the creek flows east and borders the Quarry pit’s south side before leaving the Quarry property and running to the bay.
First District Applies CEQA’s “Subsequent Review” Rules, Substantial Evidence Standard of Review; Upholds Subsequent Mitigated Negative Declaration and Modified Master Use Permit for Remote Buddhist Retreat
By Arthur F. Coon on
Posted in Baseline, CEQA Guidelines, Exhaustion, Land Use, Mitigation, Standard of Review, Subsequent Review
The First District Court of Appeal has issued another published decision applying the “substantial evidence” standard of review to a local agency’s decision not to prepare an EIR for approval of revisions to a project for which a Mitigated Negative Declaration was initially prepared. Coastal Hills Rural Preservation v. County of Sonoma (Jack Petranker, et al., Real Parties In Interest) (1st Dist., Div. One, 8/31/16) ___Cal.App.5th___, 2016 WL 4538384. The project at issue was “the third in a series of master use permits (MUPs) for … the Tibeten Nyingma Meditation Center[’s] (TNMC)” Buddhist retreat center (Ratna Ling) located on a 120-acre property, designated as Resources and Rural Development (RRD) in County’s general plan, in a rural area of western Sonoma County. A citizens group opposed to retreat expansion, Coastal Hills Rural Preservation (CHRP), sued under CEQA claiming an EIR was required because the project greatly expanded an existing “industrial” printing press operation on the property (used by retreatants to print sacred Buddhist texts for free distribution in Asia to Buddhists whose libraries have been destroyed by Chinese authorities). The most recent MUP application sought to: authorize as permanent four (4) previously temporary steel-frame, fire-retardant membrane storage tents totaling approximately 40,000 square feet (equipped with automatic sprinklers and used to store the texts); add to the property’s extensive existing facilities a six-bedroom residence and eight tent cabins for volunteers; and increase the retreat’s total occupancy limit to 98 persons with 24 additional persons allowed on a seasonal basis (apparently fluctuating with the intensity of the volunteer printing activities).
Supreme Court Depublishes Quirky Fourth District CEQA/General Plan Decision
By Arthur F. Coon on
On August 17, 2016, the California Supreme Court ordered the Fourth District’s opinion in People for Proper Planning v. City of Palm Springs (2016) 247 Cal.App.4th 640 to be depublished, rendering it unciteable and of no precedential effect. I posted two previous blog entries on the Court of Appeal’s original decision and its subsequent modification. Continue Reading Supreme Court Depublishes Quirky Fourth District CEQA/General Plan Decision
Statutory CEQA Reform Proposal (SB 122) Reemerges With Optional Expedited Record Preparation Provisions Unchanged; Fleshes Out OPR Electronic Database Placeholder; And Drops Controversial Effort To Provide Public Review Period for Final EIRs
By Arthur F. Coon on
About one year after being placed in the California Legislature’s “Inactive File,” SB 122 (concerning concurrent preparation of the CEQA administrative record and OPR electronic database) is back “off the shelf.” The bill passed in the State Assembly yesterday, and will next be considered by the Senate for concurrence in the Assembly’s amendments. It must be passed by both houses between now and the end of the month (if it is to be sent to Governor Brown for signature).
As originally proposed in early 2015, SB 122 contained only one detailed statutory provision – the addition of Public Resources Code § 21167.6.2 – which would create a detailed new alternative method for expedited preparation of the record of proceedings (i.e., the “administrative record”) in CEQA cases, at the election and expense of the applicant and with the consent of the public agency. It also contained two “placeholder” sections declaring the Legislature’s intent to establish an electronic database clearinghouse of CEQA documents maintained by the State Office of Planning and Research (OPR) and to establish a public review period for Final EIRs.
“CEQA-In-Reverse” Case on Remand: First District Holds BAAQMD’s 2010 Air Pollutant Thresholds Not Facially Invalid, But Can’t Be Used For Primarily Intended Purpose
By Arthur F. Coon on
In a published decision filed August 12, 2016, following remand from the California Supreme Court after its landmark “CEQA-in-reverse” decision, the First District Court of Appeal reversed the trial court’s judgment and remanded with directions to issue an order partially granting CBIA’s writ of mandate and to consider CBIA’s requests for declaratory relief and attorneys’ fees. California Building Industry Association v. Bay Area Air Quality Management District (1st Dist., Div. 5, 2016) 2 Cal.App.5th 1067.
Sixth District Holds CEQA’s “Fair Argument” Test Inapplicable To City Of San Jose’s Discretionary Determination That 1922 Wooden Railroad Trestle Is Not Historical Resource
By Arthur F. Coon on
A project that may cause a substantial adverse change in the significance of a “historical resource” may, for that reason, have a significant effect on the environment for purposes of CEQA. (Pub. Resources Code, § 21084.1.) And those familiar with CEQA know that, under its “fair argument” test, where there is any substantial evidence in the record that a project may have a significant effect on the environment, an EIR must be prepared. (§ 21080(d).) But just what is a “historical resource”? How is the determination of its historicity made, by whom, and by applying what standards to the relevant evidence? Those important questions are addressed by the August 12, 2016 published opinion of the Sixth Appellate District Court of Appeal in Friends of the Willow Glen Trestle v. City of San Jose (2016) 2 Cal.App.5th 457.
Holland & Knight SCAG Update Report: CEQA Litigation Abuse Hurts Infill Housing
By Arthur F. Coon on
Following up on their 2015 report covering all CEQA lawsuits filed during the 2010-2012 period, Holland & Knight lawyers Jennifer Hernandez, David Friedman and Stephanie DeHerrera recently released a portion of the sequel – the 2013-2015 update – covering CEQA lawsuits targeting housing projects within the Southern California Association of Governments (SCAG) region. The document is entitled “In the Name of the Environment Update: CEQA Litigation Update For SCAG Region (2013-2015)” and can be found on Holland & Knight’s website at https://www.hklaw.com/publications/In-the-Name-of-the-Environment-Update-07-26-2016/. The accelerated release of findings for California’s most populous region – SCAG covers six counties and 191 cities – was prompted by Governor Brown’s controversial May 2016 proposal to require “by right” ministerial approvals of zoning-compliant multifamily infill projects meeting certain affordable housing and other criteria. (My post on the 2015 Holland & Knight study can be found here; my partner Bryan Wenter’s post on Governor Brown’s “by-right” proposal can be found here.)
Continue Reading Holland & Knight SCAG Update Report: CEQA Litigation Abuse Hurts Infill Housing
First District Rejects CEQA Challenge To “Plan Bay Area” Sustainable Communities Strategy EIR As Premised On Fundamental Misinterpretation of SB 375
By Arthur F. Coon on
In a 58-page published opinion filed June 30, 2016, the First District Court of Appeal affirmed the Alameda County Superior Court’s judgment upholding the Metropolitan Transportation Commission’s (MTC) and Association of Bay Area Government’s (ABAG) EIR for and approval of “Plan Bay Area,” the agencies’ first Sustainable Communities Strategy (SCS) prepared pursuant to California’s landmark “Sustainable Communities and Climate Protection Act of 2008” (SB 375). Bay Area Citizens v. Association of Bay Area Governments, et al (2016) 248 Cal.App.4th 966.
Second District Upholds Application of CEQA’s Class 3 Categorical Exemption For New Small Structures To City’s Approval of Small Car Wash/Coffee Shop Project, Rejects Appellants’ Attempt To Invoke Unusual Circumstances Exception
By Arthur F. Coon on
In a published opinion filed July 21, 2016, the Second District Court of Appeal affirmed the trial court’s judgment rejecting plaintiffs/residential neighbors’ (“Appellants”) CEQA challenge to the City of Redondo Beach’s (“City”) approval of 4,080 square foot car wash/coffee shop (on a 25,000 square-foot urban lot) based on CEQA Guidelines § 15303’s “Class 3” categorical exemption for development of “new, small facilities or structures [and] installation of small new equipment and facilities in small structures.” Steven Walters, et al. v. City of Redondo Beach (Redondo Auto Spa, et al., Real Parties in Interest) (2d Dist., Div. 6, 2016) 1 Cal.App.5th 809, Case No. B258638.