I had occasion earlier this week to attend oral argument at the California Supreme Court in the Berkeley Hillside Preservation v. City of Berkeley case (No. S201116), which involves issues concerning the proper interpretation of and standard of judicial review for the “unusual circumstances” exception to categorical exemptions set forth in the CEQA Guidelines. The matter is now under submission with the high court and a decision is expected by not later than March 2, 2015. Those interested in further details of the argument can access my Law 360 article, as republished on my firm’s website here.
Analysis Of GHGs Under CEQA Just Got More Complex: Fourth District’s Split Decision Invalidates Program EIR For SANDAG’s 2050 Regional Transportation Plan/Sustainable Communities Strategy
By Arthur F. Coon on
In a 2-1 published opinion filed November 24, 2014, the Fourth District Court of Appeal, Division 1, affirmed and modified the trial court’s judgment granting writ petitions by plaintiff groups challenging the EIR for the San Diego Association of Governments’ (SANDAG) 2050 Regional Transportation Plan/Sustainable Communities Strategy (2050 RTP/SCS). Cleveland National Forest Foundation, et al. v. San Diego Association of Governments, et al. (2014) ___ Cal.App.4th ___, 2014 WL 6614394. SANDAG’s RTP was the first of its kind approved under SB 375, and it sought to better align transportation, land use, and housing so as to achieve regional GHG emissions reductions targets set by the California Air Resources Board (CARB). SANDAG’s assigned targets are to reduce per capita CO2 emissions 7% below 2005 levels by 2020, and 13% below 2005 levels by 2035.
What CEQA Gives, The Legislature Can Take Away: Third District Holds Special Legislation For Sacramento Kings Downtown Arena Project Is Constitutional, Upholds Trial Court’s Denial Of Preliminary Injunction
By Arthur F. Coon on
The Third District Court of Appeal, in a published opinion filed November 20, 2014, affirmed the trial court’s order denying plaintiffs’ application for a preliminary injunction seeking to halt construction of a massive new entertainment and sports center in downtown Sacramento. (Adriana Gianturco Saltonstall, et al. v. City of Sacramento (Sacramento Basketball Holdings, LLC, RPI) (3d Dist. 2014) 231 Cal.App.4th 837.)
The Limits of CEQA Mitigation – Recent Judicial Applications of Nollan and Dolan
By Arthur F. Coon on
Perhaps foremost among the judicially recognized fundamental constraints on lead agencies’ power to impose various types of mitigation measures on project approvals in the CEQA process is the “doctrine of unconstitutional conditions” explicated in the Nollan/Dolan cases and their progeny.
The CEQA Guidelines explicitly acknowledge applicable constitutional requirements that mitigation measures must have an “essential nexus” to a legitimate government interest, and that those imposed as ad hoc exactions must bear a “rough proportionality” to the project’s adverse impacts. (14 Cal. Code Regs., § 15126.4(a)(4)(A), (B), citing Nollan v. California Coastal Com’n (1987) 483 U.S. 825, 837; Dolan v. City of Tigard (1994) 512 U.S. 374, 391; Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, 866-877.)
Continue Reading The Limits of CEQA Mitigation – Recent Judicial Applications of Nollan and Dolan
Revised CEQA Chapter of Miller & Starr Treatise Is Published
By Arthur F. Coon on
Posted in Uncategorized
I’m pleased to announce that Chapter 25A., “California Environmental Quality Act (CEQA),” of Miller & Starr, California Real Estate 3d (the “Book”), revised and updated as of October 2014 by this blog’s author, has now been published by Thomson Reuters. The revised CEQA chapter, which has been extensively rewritten, expanded, and updated with recent authorities, is currently available online through www.next.westlaw.com. Print versions will be shipped to hard copy subscribers of the Book shortly.
Continue Reading Revised CEQA Chapter of Miller & Starr Treatise Is Published
Fourth District Addresses CEQA Issues Concerning Standing, Mitigation,Baseline, Piecemealing, And Responses To Comments In Affirming Judgment Upholding Perris Dam Remediation Program EIR
By Arthur F. Coon on
In a published decision filed October 31, 2014 (Paulek v. California Department of Water Resources (4th Dist., Div. 2, 2014) 231 Cal.App.4th 35, Case No. E060038), the Fourth District Court of Appeal affirmed the Riverside County Superior Court’s judgment denying a petition for a writ of mandate challenging an EIR for the Perris Dam Remediation Project. The Department of Water Resources’ (“DWR”) DEIR proposed three activities: (1) remediating the dam’s structural seismic deficiencies; (2) replacing its outlet tower; and (3) creating a new “Emergency Outlet Extension.” The FEIR addressed a modified project including only the first two components and splitting the emergency outlet extension into a separate project and environmental review process.
Supreme Court Finally Schedules Oral Argument In CEQA Categorical Exemption Case
By Arthur F. Coon on
At long last, the California Supreme Court has scheduled oral argument in the case of Berkeley Hillside Preservation, et al. v. City of Berkeley, Supreme Court Case No. S201116. By its long-awaited order issued October 31, 2014, the Court has now set argument in the matter for 9:00 a.m., December 2, 2014, in Los Angeles.
Continue Reading Supreme Court Finally Schedules Oral Argument In CEQA Categorical Exemption Case
Supreme Court Adds Another CEQA Case To Its Docket, Will Review Fifth District’s Sierra Club v. County of Fresno (“Friant Ranch”) Decision
By Arthur F. Coon on
On October 1, 2014, the California Supreme Court granted the Real Party in Interest developer’s petition for review in Sierra Club v. County of Fresno (5th Dist. 2014) 226 Cal.App.4th 704, now unciteable and pending review as Supreme Court Case No. S219783. The significant portions of the Court of Appeal’s decision were previously summarized in detail several months ago in this blog. (See “Fifth District Decides Significant CEQA Air Quality/Health Impact Analysis and Mitigation Issues in the Sierra Club v. County of Fresno” by Arthur F. Coon, posted June 16, 2014.)
Fall 2014 CEQA Roundup: Legislative and Regulatory Developments
By Arthur F. Coon on
A number of recent legislative and regulatory developments in or related to CEQA will impact public agencies, developers, and practitioners in the coming year. Some significant recent developments include:
SB 743 Implementation/New Ways to Measure Transportation Impacts under CEQA.
As previously discussed in this blog (see OPR Mulls Change in CEQA Traffic Metrics, OPR to Review Specific CEQA Guidelines Topics Proposed for 2014 Update Solicits Public Input, CEQA, Sausages, And the Art of The Possible: A Closer Look at SB 743’s General CEQA Reform Provisions), the Governor’s Office of Planning and Research is currently analyzing potential alternatives to the “level of service” metric for analyzing transportation impacts under CEQA, as mandated by SB 743. OPR has released a “preliminary discussion draft” of a new section 15064.3 of the CEQA Guidelines which sets forth the new metric, along with revisions to Appendix F identifying potential alternatives and mitigation measures.
Continue Reading Fall 2014 CEQA Roundup: Legislative and Regulatory Developments
First District Holds CEQA’s Application To Public Agency’s Approval of Railroad Operations Is Preempted By Federal Law Despite Agency’s Agreement To Conduct CEQA Review And Preparation of EIR
By Arthur F. Coon on
The North Coast Railroad Authority (NCRA), a public agency established by state law, contracted with Northwestern Pacific Railroad Company (NWPRC) to allow NWPRC to conduct freight services on tracks controlled by NCRA. Petitioner groups Friends of The Eel River (FOER) and Californians for Alternatives to Toxics (CAT) filed mandate petitions under CEQA challenging NCRA’s EIR and approval of the operations. In affirming the trial court’s judgment denying the petitions, the First District Court of Appeal – in addressing what it termed “an issue of first impression in California” — followed uniform Federal law in holding the Interstate Commerce Commission Termination Act (ICCTA; 49 U.S.C. § 10101 et. seq.) grants the Surface Transportation Board (STB) exclusive jurisdiction over rail operations and broadly exempts state and local laws that impose “permitting or preclearance requirements (including environmental requirements)” on railroad operations or activities. Friends of the Eel River v. North Coast Railroad Authority (1st Dist., Div. 5, 2014) ___Cal.App.4th ___, 2014 WL 4809456 (opn. filed 9/29/14). In so holding that the ICCTA preempted CEQA’s application to a project involving railroad operations and thus barred Petitioners’ actions, the Court rejected Petitioners’ arguments that NCRA and NWPRC were estopped to assert federal preemption as a defense by NCRA’s agreement to conduct CEQA review, their positions in prior proceedings, and/or NCRA’s (later-rescinded) certification of an EIR.