There has been a lot of buzz around proposed SB 731, which is working its way through the State Legislature and will be heard Monday, May 20, in the Senate Appropriations Committee. Notwithstanding the hype and hopes, I think Jerry Brown probably had it right when he predicted last month that CEQA reform would not be accomplished in 2013. While the debate has been vigorous, the political stars are simply not aligned to do what needs to be done to modernize and streamline the venerable 43-year old law.
Towards Not Reinventing The CEQA Wheel: Resources Agency Adopts New CEQA Guidelines For Streamlined Review of Urban Infill Development
By Sean R. Marciniak on
Repetitive CEQA review and analysis is expensive, unnecessary, unproductive, and inimical to the goals of certainty and finality in the environmental review process. In 2011, to address these concerns in the infill development context, the legislature enacted SB 226 adding Public Resources Code §§ 21094.5 and 21094.5.5 to CEQA. These sections provided for streamlined CEQA review for qualifying “infill” projects and directed OPR to prepare, and to transmit to the Secretary of the Natural Resources Agency for adoption, implementing guidelines.
Under the authorizing legislation, a qualifying “infill project” is one that includes residential, retail/commercial, transit, school, and/or public office buildings and is “located within an urban area on a site that has been previously developed, or on a vacant site where at least 75 percent of the perimeter of the site adjoins, or is separated only by an improved public right-of-way from, parcels that are developed with qualified urban uses.” (Pub. Resources Code, § 21094.5(e)(1)(B)). The legislation further provides that “[a] lead agency’s determination pursuant to this section shall be supported by substantial evidence.” (§ 21094.5(a)(1).)
Missing CEQA Statute of Limitations Is Not Excusable Neglect, Third District Holds
By Arthur F. Coon on
In its terse, no-nonsense opinion in Alliance For the Protection of the Auburn Community v. County of Placer, et al. (2013) 215 Cal.App.4th 25, ordered published on April 2, 2013, the Third District Court of Appeal affirmed a judgment entered after sustaining a demurrer to a CEQA action without leave on statute of limitations grounds and denying plaintiffs’ Code of Civil Procedure § 473 motion seeking relief based on mistake or excusable neglect. Plaintiffs’ action challenged the EIR for a development project, but was filed 3 calendar days and 1 business day after the 30-day statute of limitations of Public Resources Code § 21167 had expired because its attorney service failed to arrive at the courthouse in time to file on the deadline date. Key takeaways include:
- CCP § 473, despite its liberal construction, does not generally apply to failure to comply with limitations periods in actions instituted by either complaint or writ petition, since statutes of limitation are mandatory, and are “adamant rather than flexible in nature.”
- “If the Legislature desires to allow some flexibility in a statute of limitations, it expressly provides for an extension of the limitations period or a showing of good cause [which] … is the equivalent to a showing under section 473.”
- Absent an express legislative provision in the statute of limitations providing for a good cause extension, “the court infers that the Legislature did not intend such an extension on the grounds of good cause or under section 473.”
- CEQA’s statute of limitations, Public Resources Code § 21167, “makes no provision for extending the limitations period on a showing of good cause.”
- While CEQA is broadly interpreted to protect the environment, this liberal policy applies to the substantive merits of CEQA challenges, not to its procedural requirements, such as its filing and other procedural deadlines, which are designed to serve the public interest by ensuring CEQA challenges are promptly filed and diligently prosecuted.
In holding that relief under Code of Civil Procedure § 473 is unavailable for a litigant’s failure to file its CEQA challenge within Public Resources Code § 21167’s applicable limitations period, the Third District’s decision is not surprising and does not break new ground. It does, however, provide straightforward and useful analysis of the application of § 473 in the CEQA context, as well as a cautionary tale for plaintiffs’ attorneys who wait until the last day to file a CEQA writ petition.
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for over forty-five years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, construction, management, title insurance, environmental law, and redevelopment and land use. For more information, visit www.msrlegal.com.
First District Holds CEQA Remedies Provision Allows Park District’s Eminent Domain Action To Proceed Pending Preparation of Project EIR So Long As Property Not Actually Acquired
By Arthur F. Coon on
In Golden Gate Land Holdings LLC v. East Bay Regional Park District (4/12/13 1st Dist., Div. 5) 215 Cal.App.4th 353, the First District Court of Appeal explored the scope and proper application of CEQA’s remedies provision – Public Resources Code § 21168.9 – in the context of an eminent domain action filed before completion of necessary environmental review for the condemning agency’s project. In a partially-published opinion, the Court affirmed a judgment vacating the East Bay Regional Park District’s (“District”) CEQA exemption finding, and ordering it to prepare an EIR for a project to acquire and construct a segment of the Bay Trail on eight acres of shoreline property, while allowing the District’s eminent domain action to proceed.
Residential Project Exempt From CEQA Review Under Government Code Section 65457 As Consistent With Specific Plan For Which Program EIR Previously Certified; First District Also Holds New GHG Thresholds Do Not Constitute “New Information” Requiring Supplemental EIR For Specific Plan
By Arthur F. Coon on
In a recently published opinion construing Government Code § 65457’s exemption from environmental review for a residential development consistent with a specific plan for which an EIR was previously certified, the First District Court of Appeal affirmed a judgment rejecting a challenge to the City of Dublin’s use of the exemption to approve AvalonBay Communities, Inc.’s (“AvalonBay”) 7.2-acre development within the larger Dublin Transit Village Center. Concerned Dublin Citizens, et al. v. City of Dublin, et al. (2013 1st Dist., Div. 3) 214 Cal.App.4th1301.
AB 900 CEQA Reform Law Partially Struck Down
By Arthur F. Coon on
Ruling from the bench at a March 29, 2013 hearing, Alameda County Superior Court Judge Frank Roesch found a key provision of an ambitious CEQA reform law championed by Senator Darrell Steinberg to be unconstitutional. Specifically, Judge Roesch found “the provisions of AB 900 found in Public Resources Code [section] 21185 are so inconsistent with the constitutional mandates of where mandamus cases may be brought that it must be struck down as unconstitutional.” A detailed written statement of decision explaining the judge’s reasoning is expected sometime later this month.
Continue Reading AB 900 CEQA Reform Law Partially Struck Down
Spring CEQA Roundup
By Arthur F. Coon on
Spring is here, and it seems the judicial, legislative and executive branches of government have all been busy trying to “clean up” CEQA and related areas of the law in one way or another. Recent items of interest include:
Second District Rejects CEQA Challenge To EIR for Riverbed Sand And Gravel Mining Project, Upholds Santa Barbara County’s Discretion to Formulate Project-Specific Threshold of Significance, and Finds EIR’s Erroneous “Not Significant” Conclusion Nonprejudicial
By Arthur F. Coon on
The Second District Court of Appeal upheld the County of Santa Barbara’s Final Revised Environmental Impact Report for a 30-year conditional use permit (CUP) for the Diamond Rock mine project. Save Cuyama Valley v. County of Santa Barbara (2013 2nd Dist., Div. 6), 213 Cal.App.4th 1059 (filed 1/10/13, modified 2/8/13). The CUP allowed excavation of 500,000 tons of sand and gravel each year by real party Troesch Materials, Inc. from the often dry bed of the Cuyama River. Save Cuyama Valley lost its writ of mandate challenge to the EIR, and the Court of Appeal affirmed.
“Bare-Bones” CEQA Reform Bill (SB 731) Introduced By Senator Steinberg; Senator Evans Proposes Legislation to Further Expand CEQA
By Arthur F. Coon on
Posted in Legislation, Reform
On February 22, 2013, Senator President Pro Tempore Darrell Steinberg introduced SB 731, a bill the Senator’s website press release described as “outlining the detailed intent that strengthens [CEQA’s] protection of the state’s environment and residents while modernizing the law to help the growth of California’s economy.” Notable features of SB 731 include:
Supreme Court Will Review CEQA Decision From Fifth District In Wal-Mart Citizen Initiative Case
By Arthur F. Coon on
After receiving three separate petitions for review, including petitions from real parties Wal-Mart Stores, Inc. and the City of Sonora, the California Supreme Court voted unanimously on February 13, 2013 to grant review of the Fifth District’s controversial decision in Tuolomne Jobs & Small Business Alliance v. Superior Court (Wal-Mart Stores), Supreme Court Case No. S207173. The League of California Cities had also requested depublication of the Fifth District’s decision while the petitions for review were pending.