In a 65-page opinion certified for publication and filed October 22, 2015, the Second Appellate District Court of Appeal affirmed the Los Angeles County Superior Court’s judgment denying writ petitions by the City of Beverly Hills (“City”) and the Beverly Hills Unified School District (“District”). Petitioners and Appellants’ actions challenged respondent Los Angeles County Metropolitan Transportation Authority’s (“LA Metro”) EIS/EIR and related approval of the Westside Subway Extension Project (the “Project”). The Project involves the extension of Metro’s Purple Line heavy rail transit (HRT) subway system to the Westside of Los Angeles through the addition of 7 stations and 9 miles of subway line, and includes a new Century City station (the “Constellation station”) to be reached through a tunnel to be constructed underneath Beverly Hills High School. The City of Beverly Hills v. Los Angeles County Metropolitan Transportation Authority (Case No. B256753) (2d Dist., Div. 4, 2015) 241 Cal.App.4th 627.
Satisfying State Compensatory Mitigation Requirements Under CEQA On Federal Conservation Lands: CDFW And BLM Agree To Cooperate To Make It Happen
By Arthur F. Coon on
Posted in Land Use, Legislation, Mitigation, Reform, Responsible and Trustee Agencies, Uncategorized
On October 2, 2015, the Bureau of Land Management (“BLM”) and the California Department of Fish and Wildlife (“CDFW”) entered into a 12-page “agree[ment] to work with each other to conserve biological and natural resources on federal public lands administered by the BLM within California.” (10/2/15 Agreement By And Between The United States Bureau Of Land Management And The California Department Of Fish And Wildlife (“Agreement”), at p. 1.) The Agreement states it was developed “for the purpose of memorializing and making specific [the agencies’] cooperation and coordination to protect and conserve fish, wildlife, plants and their habitat within California” and that it “supplements” an earlier, November 27, 2012 MOU between BLM and CDFW. (Ibid.) Continue Reading Satisfying State Compensatory Mitigation Requirements Under CEQA On Federal Conservation Lands: CDFW And BLM Agree To Cooperate To Make It Happen
Proposed CEQA Guidelines Amendments: A Critique of OPR’s “Preliminary Discussion Draft” (Part III – Proposed “Minor Technical Improvements”)
On September 18 and October 5, 2015, I posted Parts I and II, respectively, of my comments on OPR’s August 11, 2015 Preliminary Discussion Draft of its “Proposed Updates to the CEQA Guidelines” (the “Discussion Draft”). While the deadline for public comments on the 145-page Discussion Draft was October 12, 2015, there undoubtedly will be future opportunities for public input on the proposed Guidelines amendments during the formal rulemaking process that will ultimately be conducted by the Natural Resources Agency, if not before. This concluding post on the Discussion Draft covers its final part, which sets forth about a dozen proposed revisions that OPR characterizes as merely “Minor Technical Improvements.” (Discussion Draft, at 108-145.)
Fourth District Addresses CEQA Baseline Issues In Partially Published Opinion Upholding EIR For Carlsbad Shopping Mall Renovation
By Arthur F. Coon on
In an opinion filed September 10, and later ordered partially published on October 9, 2015, the Court of Appeal affirmed the substance of a judgment upholding an EIR for a regional shopping center renovation project in Carlsbad, California, reversing only with respect to certain cost award issues treated in an unpublished portion of the opinion. North County Advocates v. City of Carlsbad (Plaza Camino Real, LP, et al., Real Parties in Interest) (4th Dist., Div. 1, 2015) 241 Cal.App.4th 94. The published portions of the opinion address the case’s facts, applicable CEQA rules and standards of review, and traffic baseline issues; the unpublished portions address issues concerning traffic mitigation measures, the adequacy of the City of Carlsbad’s (“City”) responses to comments, and the propriety of the various aspects of the trial court’s record preparation cost awards that were made to the City and real parties (“Westfield”) as prevailing parties.
Proposed CEQA Guidelines Amendments: A Critique of OPR’s “Preliminary Discussion Draft” (Part II – Proposed “Substance” and Major “Technical Improvements”)
On September 18, 2015, I posted a “Part I” piece on the “efficiency improvements” category of OPR’s Preliminary Discussion Draft of its “Proposed Updates to the CEQA Guidelines” (the “Discussion Draft”). That post can be found here. This follow up post (Part II) covers OPR’s most significant proposals contained in the Discussion Draft’s remaining two categories, i.e., its two proposed “Substance” improvements and its first three proposed “Technical” improvements, but excludes the remaining dozen proposals that OPR classifies as only “minor technical improvements.”
Supreme Court Depublishes Lengthy CEQA Categorical Exemption Case
By Arthur F. Coon on
Posted in Approval/Pre-Commitment, Exemptions, Exhaustion, Land Use, Legislation, Litigation, Mitigation, Standing, Uncategorized
On September 9, 2015, the California Supreme Court denied review and decertified the Fourth District Court of Appeal’s previously published opinion in Albert Thomas Paulek v. Western Riverside Regional Conservation Authority, which had appeared at 238 Cal.App.4th 583. A discussion of the issues presented by the case and my analyses of the Court of Appeal’s reasoning on them can be found in my post on the originally published opinion. (See “Fourth District Holds Agency’s Removal of Conservation Designation From Land Formerly Protected Under MSHCP Is ‘Project’ Subject to CEQA; Class 7 and 8 Categorical Exemptions for Environmentally Protective Regulatory Actions Do Not Apply,” by Arthur F. Coon, posted July 2, 2015.)
The Supreme Court’s depublication order means that while the decision remains binding on the parties to the case, it will not be citable as precedential authority under California law.
Continue Reading Supreme Court Depublishes Lengthy CEQA Categorical Exemption Case
First District Applies CEQA Exhaustion/Standing Rules, Upholds Judgment Rejecting Claim of Statutory Exemption for Controversial State Lands Commission Land Exchange Agreement
By Arthur F. Coon on
In a published decision filed September 17, 2015, the First District Court of Appeal affirmed the trial court’s judgment granting a writ of mandate and finding that a proposed land exchange agreement was not statutorily exempt from CEQA review. Defend Our Waterfront v. California State Lands Commission, et al (San Francisco Waterfront Partners II, LLC, et al) (1st Dist., Div. 4, 2015) 240 Cal.App.4th 570. The underlying facts are straightforward, as is the Court’s holding interpreting CEQA’s statutory exemption that applies to “settlements of title and boundary problems by the State Lands Commission and to exchanges or leases in connection with those settlements.” (Pub. Resources Code, § 21080.11.) Perhaps more interesting, however, is the Court’s treatment (partly in dicta) of CEQA’s statutory standing and exhaustion requirements as embodied in Public Resources Code § 21177. Continue Reading First District Applies CEQA Exhaustion/Standing Rules, Upholds Judgment Rejecting Claim of Statutory Exemption for Controversial State Lands Commission Land Exchange Agreement
Proposed CEQA Guidelines Amendments: A Critique Of OPR’s “Preliminary Discussion Draft” (Part I – Proposed “Efficiency Improvements”)
On August 11, 2015, the Governor’s Office of Planning and Research (OPR) released a 145-page “Preliminary Discussion Draft” of “Proposed Updates to the CEQA Guidelines” (the “Discussion Draft”). The Discussion Draft “contains [OPR’s] initial thoughts on possible amendments to the CEQA Guidelines” and proposes revisions to nearly thirty (30) sections that OPR classifies into three categories: (1) efficiency improvements; (2) substance improvements; and (3) technical improvements. If ultimately adopted in some form, the Discussion Draft’s proposals would constitute the most comprehensive update to the Guidelines since the late 1990s. The Discussion Draft’s Executive Summary describes it as “a balanced package that is intended to make the [CEQA] process easier and quicker to implement, and better protect natural and fiscal resources consistent with other state environmental policies.” Continue Reading Proposed CEQA Guidelines Amendments: A Critique Of OPR’s “Preliminary Discussion Draft” (Part I – Proposed “Efficiency Improvements”)
Back To The Chalk Board: School District’s Math Fails To Justify CEQA Categorical Exemption For School Closures
By Arthur F. Coon on
In a published opinion filed September 2, 2015, the Fourth District Court of Appeal (Division 2) reversed the trial court’s judgment denying a writ petition challenging a school district’s determination that its closure of two schools and related student transfers were exempt from CEQA. Save Our Schools v. Barstow Unified School District Board of Education (2015) 240 Cal.App.4th 128. In directing on remand the issuance of a writ that would, at a minimum, mandate that the District void its exemption determination and reconsider the matter, the Court also held that the District could in further proceedings consider additional evidence not before it at the time it made its initial exemption decision, and that any challengers would have the opportunity to present additional evidence as well. Continue Reading Back To The Chalk Board: School District’s Math Fails To Justify CEQA Categorical Exemption For School Closures
First District Holds Public Agency’s Inadvertent Disclosure of Privileged Documents In Response To PRA Request Does Not Waive Privilege; Decision Has Implications For Administrative Record Preparation Process In CEQA And Other Actions
By Arthur F. Coon on
On July 31, 2015, the Court of Appeal for the First Appellate District, Division One, filed a 23-page published opinion holding that the inadvertent disclosure of attorney-client privileged and work product protected documents by a public agency in response to a Public Records Act (“PRA”) request did not waive the privilege. Newark Unified School District v. The Superior Court of Alameda County (Elizabeth Brazil, Real Party in Interest) (2015) 239 Cal.App.4th 33. While the PRA request and responses at issue were not made in the context of litigation by the requesting party against the responding public agency, the Court’s holding has implications for that scenario, which is a common occurrence in CEQA and other litigation against public agencies. Continue Reading First District Holds Public Agency’s Inadvertent Disclosure of Privileged Documents In Response To PRA Request Does Not Waive Privilege; Decision Has Implications For Administrative Record Preparation Process In CEQA And Other Actions