As the regulated community eagerly awaits completion of briefing at the Supreme Court in the Berkeley Hillside Preservation case, the Courts of Appeal continue to decide CEQA categorical exemption cases – as is their nondiscretionary duty – without the high court’s forthcoming guidance. The most recent such case is the Third District’s published decision in Voices for Rural Living v. El Dorado Irrigation District (Shingle Springs Band of Miwok Indians, RPI) (10/4/12, 3d Dist.) 209 Cal.App.4th 1096, No. C064280. The case illustrates application of the unusual circumstances exception to categorical exemptions in a fairly unusual context – a water supply MOU for an already-built and operating Indian casino and hotel in El Dorado County – and offers interesting insights on CEQA exemption and water supply issues, as well as issues involving the nature and authority of LAFCO and special districts in the context of annexation approval conditions.
Timing Is Everything: CEQA Notice of Exemption Must Be Both Facially Valid And Properly Filed To Trigger Short Limitations Period
By Arthur F. Coon on
In a partially published opinion filed September 14, 2012, the Fifth District Court of Appeal revived a CEQA lawsuit the trial court had dismissed as time-barred on demurrer because it was filed 55 days after the City of Visaliafiled a notice of exemption (“NOE”). The case – Coalition for Clean Air v. City of Visalia (VWR International, LLC) ) (Sept. 14, 2012) 209 Cal.App.4th 408, Case No. F062983 – may be viewed as “blurring” a “bright line” rule stated by the Supreme Court just two years ago, but it provides a valuable reminder to CEQA action respondents and real parties of the “t”’s that must be crossed and the “i”’s that must be dotted to ensure they can take advantage of CEQA’s short statute of limitations period (35 days) when relying on an exemption. The decision’s key points on this important issue include:
First District Holds CEQA’s Class 3 Categorical Exemption Applies To Installations of Small Telecommunications Equipment On Existing Utility Poles, Recognizes Split In Case Law On Standard of Review For Cumulative Impact Exception
By Arthur F. Coon on
The same appellate panel that decided the controversial Berkeley Hillside Preservation case (which is currently in the briefing stage of Supreme Court review) rendered another significant categorical exemption decision in its recently published opinion in Robinson v. City and County of San Francisco (T-Mobile West Corporation, et al., Real Parties) (July 26, 2012, 1st Dist., Div. 4) 208 Cal.App.4th 950. This opinion was more deferential to the local agency’s exemption decision, and seemingly more circumspect regarding both its practical impact on the utility of categorical exemptions and its acknowledgment of the split of judicial authority in the standard of review applicable to exceptions to exemptions.
Are Courts Actively Limiting CEQA’s Scope In The Absence of Meaningful Legislative Reform?
By Arthur F. Coon on
Governor Jerry Brown was recently quoted in a Capitol Alert piece as calling legislative reform of CEQA “the Lord’s work” – hopefully he didn’t mean the quest for the Holy Grail – although he admitted in the same article he hadn’t yet read the latest bills proposing to limit its scope. In the short time since then, SB 317 (the most significant effort at CEQA reform this year) appears to have died in the waning days of this Legislative session. While “hope springs eternal,” meaningful legislative reform of CEQA thus continues to prove elusive.
Does CEQA Provide For Classes of Exempt Projects? Parties File Opening Merits Brief in Supreme Court in Berkeley Hillside Preservation
By Arthur F. Coon on
Following up on previous posts (see February and May archives), the City of Berkeley Respondents and the Kapors (Real Parties in Interest) filed their joint 80-page opening brief on the merits on July 27 in Berkeley Hillside Preservation, et al. v. City of Berkeley, et al., California Supreme Court. The case will decide whether the Court of Appeal erred in overturning the City’s approval of the Kapors’ two-story, 6,478 square foot single family residence, and 3,394 square foot garage, on a 29,714 square foot parcel zoned Single Family Residential District–Hillside Overlay.
First District Reaffirms CEQA Is Concerned With Physical Impacts On The Environment, Not Economic Ones On Government Services
By Arthur F. Coon on
The First Appellate District recently ordered partially published its opinion in City of Hayward v. Board of Trustees of the California State University (2012) __ Cal.App.4th __, 2012 WL 2832858 (cert. for pub. 6/28/12), which applied some CEQA basics in clarifying what “impacts” of a project must be analyzed and mitigated under CEQA. In so doing, it helpfully sharpened the sometimes fuzzy boundaries of the statute’s outer reach as it is all too commonly applied.
Supreme Court Holds CEQA’s Exhaustion Requirement Applies To Categorical Exemption Challenges
By Arthur F. Coon on
In a common-sense resolution of a conflict on the issue in the courts of appeal, the California Supreme Court held in a June 14, 2012 decision that Public Resources Code § 21177(a)’s exhaustion-of-administrative-remedies requirement applies to actions challenging an agency’s determination that a project is categorically exempt from CEQA. Tomlinson v. County of Alameda(2012) 54 Cal.4th 281. In reversing the First District Court of Appeal’s contrary decision, the Supreme Court resolved the conflict between the decisions in Azusa Land Reclamation Co. v. Main San Gabriel Watermaster (1997) 52 Cal.App.4th 1165 (holding exhaustion requirement inapplicable to categorical exemption challenges) and Hines v. California Coastal Com. (2010) 186 Cal.App.4th 830 (holding exhaustion requirement applies to categorical exemption challenges).
How Recent CEQA Cases Show The Need For Legislative CEQA Reform
By Arthur F. Coon on
Posted in Administrative Record, Exemptions, Fees and Costs, Legislation, Litigation, Reform, Remedies
Some CEQA practitioners think the sheer volume of published CEQA opinions demonstrates the need for reform – res ipsa loquitur, so to speak. Recently a litigation mentor of mine, a brilliant man who was at the forefront of CEQA litigation more than 20 years ago when he left my firm to teach law, asked me: “What’s with this Berkeley Hillside Preservation case? Are EIRs really now required for single family homes?” (Note: The Supreme Court has now granted review of that case.) Another leading CEQA practitioner and author views recent legislative efforts at CEQA streamlining and litigation reform as largely ineffectual, and sees no meaningful reforms on the horizon. I tend to share these views, as indicated at the conclusion of a May 22, 2012 post I co-authored with Nadia Costa, on the Fifth District’s Consolidated Irrigation District (“CID”) decision, “Breaking Down CEQA’s Administrative Record Statute: Fifth District Explains What’s In and What’s Out.” This is the “follow-up” post explaining why that case struck a “CEQA reform” chord with me.
Continue Reading How Recent CEQA Cases Show The Need For Legislative CEQA Reform
Supreme Court Will Review CEQA Categorical Exemption Exception In Berkeley Hillside Preservation Case
By Arthur F. Coon on
On May 23, 2012, the California Supreme Court by unanimous vote granted respondents’ and real parties’ petition for review of the First District Court of Appeal’s published decision in Berkeley Hillside Preservation, et al. v. City of Berkeley, et al. (2/15/12 203 Cal.App.4th 656, Case No. A131254), which held that substantial evidence of a fair argument of a potentially significant environmental impact automatically satisfies the “unusual circumstances” exception, and thus precludes reliance on a CEQA categorical exemption. (See “CEQA Categorical Exemptions Defeated By Mere “Fair Argument” of Impact, First District Holds”, 2/23/12 post by Arthur F. Coon and Nadia L. Costa.) The First District’s decision, requiring an EIR for construction of a large single-family home in the Berkeley hills, was controversial and sharpened a split of authority regarding the proper standard of review for categorical exemptions and interpretation of the “unusual circumstances” exception to categorical exemptions. CEQA practitioners and stakeholders will continue to follow this matter with interest.
Breaking Down CEQA’s Administrative Record Statute: Fifth District Explains What’s In and What’s Out
By Arthur F. Coon on
In a highly detailed and analytical opinion, the Fifth District Court of Appeal addressed and answered numerous novel legal questions regarding the proper interpretation and application of Public Resources Code § 21167.6(e), CEQA’s administrative record statute. Consolidated Irrig. Dist. v.. Superior Court, 205 Cal.App.4th 697 (2012). In brief, the court of appeal rejected the blanket contention that discovery is never allowed in a CEQA case, and also provided significant guidance as to the proper content of the administrative record.