In a lengthy opinion filed April 8, and ordered published on May 7, 2021, the Third District Court of Appeal affirmed a judgment rejecting a number of CEQA challenges to the California State Land Commission’s (Lands Commission) supplemental EIR for and related approval of a lease modification to facilitate a desalination plant in Huntington Beach.  California Coastkeeper Alliance v. State Lands Commission (Poseidon Resources (Surfside) LLC, Real Party in Interest) (2021) ___ Cal.App.5th ___.  In holding that the Commission properly elected to prepare a supplemental (rather than subsequent) EIR, did not err in refusing to assume lead agency status, and did not unlawfully piecemeal environmental review, the Court provided guidance on a number of significant CEQA issues.

Continue Reading Third District Affirms Judgment Upholding State Lands Commission’s Supplemental EIR For Desalination Plant Lease Modification, Rejects CEQA Claims That Commission Piecemealed Review And Should Have Assumed Lead Agency Status And Prepared A Subsequent EIR

“The more I know, the less I understand/All the things I thought I’d figured out, I have to learn again” – Don Henley, “The Heart of the Matter”

One of CEQA’s bedrock principles is that environmental review must precede project approval.  (E.g., POET, LLC v. California Air Resources Board (2013) 217 Cal.App.4th 1214; CEQA Guidelines, § 15004(a).)  To reverse the order and “put the cart before the horse” would be anathema, i.e., to sanction uninformed and undemocratic lead agency decision making, and to encourage irretrievable commitments of resources and post-hoc rationalizations that foreclose mitigations and alternatives and sweep environmental considerations under the rug.  Right?  Well …  maybe not.  In the area of State Water Resources Control Board (“SWRCB” or the “State Board”) water quality certifications (“WQCs”) under the Federal Clean Water Act (“CWA”; 33 U.S.C § 1251 et seq), this bedrock principle appears to have been watered down, and it may be significantly eroding under pressure from a preemptive federal law deadline.


Continue Reading Must CEQA Compliance Precede Project Approval? When State Water Board Water Quality Certifications Are Involved, The Answer Is As “Clear as Mud”

In a published opinion filed December 29, 2020, the First District Court of Appeal affirmed a judgment denying a petition for writ of mandate filed by the Santa Clara Valley Water District (District) challenging waste discharge requirements (WDRs) belatedly imposed by a responsible agency, the San Francisco Bay Regional Water Quality Control Board (Board), on lead agency District’s flood control project.  Santa Clara Valley Water District v. San Francisco Bay Regional Water Quality Control Board (2020) 59 Cal.App.5th 199.  The case involved highly unique facts, and a number of interesting legal issues concerning the Board’s authority under the Federal Clean Water Act (CWA), the state Porter-Cologne Act, and CEQA.

Continue Reading Can a Responsible Agency Get A Second Bite At The CEQA Apple? First District Says “Sometimes, Yes,” Upholds Regional Water Board’s Imposition of Additional Mitigation On Flood Control Project Through “Independent” Porter-Cologne Act Authority Exercised Subsequent To Grant Of CWA § 401 Water Quality Certification Based On Lead Agency’s Unchallenged Final EIR

In an opinion originally filed June 28, and later certified for partial publication on July 22, 2019 (upon the request of the California Building Industry Association), the Second District Court of Appeal affirmed a judgment denying a CEQA writ petition challenging a project converting a vacant former apartment building into a boutique hotel in Los Angeles’ Hollywood area.  Hollywoodians Encouraging Rental Opportunities (HERO) v. City of Los Angeles et al. (Millennium Settlement Consulting/1850 North Cherokee, LLC et al., Real Parties in Interest) (2019) 37 Cal.App.5th 768.  The MND for the project was legally adequate, and the City did not err in failing to prepare an EIR to analyze loss of affordable housing and tenant displacement impacts, because the former apartment building had been withdrawn from the rental market for years and was vacant at the time environmental review for the hotel project commenced.  Because the relevant CEQA baseline when review commenced in 2015 was a vacant building already withdrawn from the rental market, the record did not support a fair argument that conversion of the building to hotel use would have significant impacts on Hollywood’s stock of rent-controlled housing or displacement of residents.

Continue Reading “Baseline” Basics: Second District Rejects CEQA Challenge To Hollywood Hotel Project MND Alleging Unanalyzed Human/Housing Displacement Impacts Because Plaintiffs Relied On Incorrect Environmental Baseline

On November 20, 2018, in response to a petition for review filed by the Target Superstore project’s opponent, plaintiff (and respondent on appeal) Citizens Coalition Los Angeles, the California Supreme Court denied review and ordered the Court of Appeal’s opinion depublished.  My September 7, 2018 blog post analyzing and critiquing the Court of Appeal’s decision, which was previously published at Citizens Coalition Los Angeles v. City of Los Angeles (2018) 26 Cal.App.5th 561, can be found here.

Continue Reading Supreme Court Denies Review And Depublishes CEQA Subsequent Review/“Spot-Zoning” Case Involving Partially Built Los Angeles Target Superstore Project

Most real estate developers would likely agree that, even when correctly applied and complied with, CEQA can be an onerous law which can significantly complicate, delay, increase the cost of, and in some cases (particularly where CEQA litigation is involved) even preclude projects.  But what recourse does a project applicant have under the law when CEQA is misapplied – and blatantly so – by a local agency which denies approval of a project that is clearly exempt from CEQA on the meritless basis that extensive (and expensive) CEQA review is required?  When the developer’s only recourse is time-consuming and expensive litigation to obtain a writ of mandate setting aside the agency’s illegal action subjecting the project to CEQA, can the developer who succeeds in obtaining the writ recover from the public agency compensation and damages resulting from the temporary “taking” of all reasonable economic use of its property?

Continue Reading California Supreme Court Grants Review Of Regulatory Taking Issues In San Diego Single Family Residence CEQA Case; Merits Briefs To Be Filed Soon

In a published opinion filed in consolidated appeals on September 28, 2018, the Fourth District Court of Appeal (Div. 1) affirmed the trial court’s judgment invalidating San Diego County’s adoption of a 2016 Guidance Document that established a generally applicable threshold of significance for GHG analysis of 4.9 metric tons of CO2e per service population per year.  Golden Door Properties, LLC v. County of San Diego/Sierra Club, LLC v. County of San Diego (2018) 27 Cal.App.5th 892.  The Court held the case was ripe because the 2016 Guidance Document’s GHG “Efficiency Metric” set forth the threshold of significance as generally applicable to project proposals; it held the document violated CEQA because it was not formally adopted by ordinance, rule, resolution or regulation through a public review process, and was not supported by substantial evidence adequately explaining how its service population number derived from statewide data constituted an appropriate GHG metric to use for all projects in unincorporated San Diego County.  (CEQA Guidelines, §§ 15064.7(b), (c); Center for Biological Diversity v. California Department of Fish and Wildlife (2015) 62 Cal.4th 204, 227 (“CBD”).)  The Court also held County’s adoption of the threshold of significance in advance of its required Climate Action Plan (CAP) constituted improper “piecemealing [of] environmental regulations” in violation of the Court’s earlier decision and the trial court’s second supplemental writ in the same litigation, which treated the CAP and thresholds of significance based on it as a single CEQA project and required completion of the CAP prior to the adoption of the thresholds of significance.

Continue Reading Fourth District Holds San Diego County’s Threshold of Significance for Evaluating GHG Impacts Violates CEQA And Prior Writ

In a published opinion filed September 18, 2018, the Fourth District Court of Appeal (Div. 1) affirmed a judgment granting a writ setting aside the City of San Diego’s (City) decision to subject a coastal development permit (CDP) application for construction of a single family home on a vacant La Jolla lot to CEQA review.  Francis A. Bottini, Jr. v. City of San Diego (2018) 27 Cal.App.5th 281.

Continue Reading Fourth District Holds City Violated CEQA By Refusing To Recognize Exemption For Single Family Residence Project And Attempting To Subject Owner’s Already Authorized And Completed Demolition Action To Retroactive Environmental Review (Yet Absolves City From Liability For Regulatory Taking)

In a lengthy published opinion filed August 23, 2018, the Second District Court of Appeal reversed the trial court’s judgment, and upheld the City of Los Angeles’ addendum to a prior project-level EIR for a Target Superstore as legally sufficient CEQA compliance for a revised plan-level  project which amended a specific plan so as to authorize that same development.  Citizens Coalition Los Angeles v. City of Los Angeles (Target Corporation, Real Party in Interest) (2018) 26 Cal.App.5th 561.  The Court further held the specific plan amendment was not impermissible “spot zoning,” even if approved only to authorize the site-specific Superstore project, because there was a “reasonable basis” for the City to find it was in the public interest.  While these holdings are not surprising, some of the analysis used to reach the Court’s clearly correct CEQA holding – which analogizes subsequent review rules to piecemealing concepts – is novel and potentially confusing, as discussed below.

Continue Reading Second District Applies CEQA’s “Subsequent Review” Rules to Uphold EIR Addendum for Revised Target Superstore Project Including “Spot-Zoning” Specific Plan Amendment Authorizing Use

In an opinion filed February 5 and later ordered published on February 27, 2018, the Sixth District Court of Appeal affirmed a judgment denying Aptos Residents Association’s (“ARA”) writ petition challenging Santa Cruz County’s approval, as categorically exempt from CEQA, of real party Crown Castle’s (“Crown”) project to extend Verizon’s wireless coverage by installing a 13-microcell Distributed Antenna System (“DAS”) in Aptos’ Day Valley area.  Aptos Residents Association v. County of Santa Cruz (Crown Castle, Inc., Real Party in Interest (2018) 20 Cal.App.5th 1039.

Continue Reading Can You Clear Me Now? Sixth District Upholds Santa Cruz County’s CEQA Categorical Exemption For Project To Install Microcell Transmitters On Utility Poles In Rural Aptos Area