As I pointed out on September 13, 2011 (“Ten CEQA Litigation Mistakes To Avoid”), a CEQA plaintiff must not forget to name all real parties in interest since a failure to name indispensible parties under Code of Civil Procedure § 389 will result in dismissal.  On October 9, 2011, Governor Brown signed into law a bill (AB 320 (Hill)) which makes it easier to avoid that mistake.

CEQA has long required state and local lead agencies approving a project to file a notice of determination (“NOD”) where an EIR is certified or negative declaration adopted, and allowed them to file a notice of exemption (“NOE”) where the project is determined to be exempt from CEQA.  These notices are to be filed within five (5) working days of final project approval, and principally serve to alert the public of the agencies’ final decision and CEQA determination, and to trigger CEQA’s short (30 and 35 day) statutes of limitation for project challenges.

AB 320 amends CEQA’s provisions to require that lead agencies approving a project must now identify in their NOD or NOE all project approval recipients.  (See new Pub. Resources Code, §§ 21108(a)(b), 21152(a)(b).)  It further provides that CEQA plaintiffs shall name, as real parties in interest, the parties so identified and that “[f]ailure to name potential persons, other than those real parties in interest [so identified] is not grounds for dismissal pursuant to Section 389 of the Code of Civil Procedure.”  (See new Pub. Resources Code, § 21167.6.5(d).)

The new law provides more comfort and certainty to CEQA plaintiffs, and will require public agencies and approval recipients to exercise more care and attention in the preparation of NODs and NOEs.  The law will not apply to CEQA actions pending on or before, or seeking to challenge decisions for which an NOD or NOE was filed on or before, December 31, 2011.

Shortly before the close of the last legislative session, I found myself writing a strongly-worded letter (on behalf of myself and interested clients of Miller Starr Regalia) to Governor Brown, the authors of proposed SB 436 (Kehoe) and AB 484 (Alejo) and certain Senate and Assembly Committee Chairs to urge an amendment of – or alternatively a “no” vote on or veto of – those bills.

I specifically requested removal of proposed Government Code § 65968(b), which would have provided:  “A property that has been previously protected for conservation purposes, including the placement of a conservation easement on the property, may not be used for mitigation purposes.”  My letter pointed out that the provision would: (1) constitute an unconstitutional taking of the property rights of farmers and landowners who have granted conservation easements on their properties; (2) violate constitutional prohibitions against contract impairment and public policy favoring freedom of contract; and (3) conflict with the existing statutory law and legislatively-established public policies governing voluntary conservation easements embodied in Civil Code §§ 815, et seq.  In short, it was an illegal “property rights grab.”  And it was buried in an otherwise innocuous bill whose only purpose, as disclosed by every available legislative analysis, was to clarify and expressly authorize a non-controversial existing administrative practice regarding transferring endowment funds from governmental agencies to non-profits that acquire their conservation easements. Continue Reading CEQA Mitigation On Conservation Easement Lands: How a Plea to Legislators Killed a Threat to Farmers’ Property Rights (For Now)

What originated as legislation to expedite anticipated CEQA challenges to the proposed Farmers Field football stadium project in Los Angeles (SB 292) transformed under Senator Darrell Steinberg’s political leadership into more ambitious legislation (SB 900) that will expedite CEQA litigation over “green” mega-development projects certified by Governor Brown as “Environmental Leadership Development Projects”.  Governor Brown signed both bills into law on September 27, 2011.

Premised on the need – in California’s current high unemployment climate – to streamline CEQA litigation delaying large, job-creating projects with “cutting edge environmental benefits,” AB 900 amends CEQA by: Continue Reading Governor Signs AB 900 to Speed CEQA Litigation Challenging Massive “Green” Projects

Everyone seems to talk about abuses of the CEQA process and meaningful CEQA reform, but nothing ever seems to get done, much to the chagrin of developers who find themselves the target of CEQA litigation.  The California legislature may have taken a small, but important, step toward rectifying this situation with its 2010 enactment of Public Resources Code Section 21169.11.  The statute was enacted as part of an urgency measure, to curb litigation abuses and provide relief from frivolous claims made in CEQA actions.  (SB 1456 (Stats. 2010, Ch. 496.))

In brief, the new statute provides:

  • Where a court determines a claim made in the course of a CEQA action is frivolous, i.e., totally and completely without merit, it “may impose an appropriate sanction, in an amount up to ten thousand dollars ($10,000)”
  • “The sanction may be imposed upon the attorneys, law firms, or parties responsible for the violation.”
  • The sanctions motion may be made “at any time after a petition has been filed pursuant to this division, but at least 30 days before the hearing on the merits.” Continue Reading CEQA Sanctions Statute: Effective Deterrent To Abuse?

Vernon Law, famed Pittsburgh Pirates pitcher, once said: “Experience is a hard teacher because she gives the test first, the lesson afterward.”  The same rings true regarding CEQA litigation, where traps for the unwary abound, and mistakes can be painful, costly and even fatal to a client’s claims or action.  Based on nearly 25 years of personal experience litigating CEQA cases in California trial and appellate courts, as well as extensively writing and speaking on the topic, I offer for consideration the following ten mistakes all CEQA litigators should be sure to avoid.

  • Don’t fail to exhaust your administrative remedies and obtain standing.  If you fail to raise an issue you want to litigate during the CEQA public comment period or prior to the close of the lead agency’s public hearing on the project, you will forfeit it, and if you fail to object during that timeframe you will fail to obtain standing to sue at all under CEQA.  (Pub. Resources Code, §21177; Central Delta Water Agency v. State Water Resources Control Bd. (2004) 124 Cal.App.4th 245, 273-274.) Continue Reading Ten CEQA Litigation Mistakes To Avoid