In a partially published opinion filed June 25, 2020, the First District Court of Appeal (Division 5) reversed the trial court’s judgment entered after sustaining a demurrer without leave to amend; it held that a non-profit group’s petition and complaint for declaratory relief adequately stated a cause of action on the basis that U.C. Berkeley’s approval of student enrollment increases far beyond those projected in its 2005 Long Range Development Plan (“LRDP”), and analyzed in the related 2005 Program EIR (“PEIR”), constituted a “project” requiring CEQA review and mitigation.  (Save Berkeley’s Neighborhoods v. The Regents of the University of California, et al. (2020) ___ Cal.App.5th ___.)  The published portion of the opinion also held that the enrollment increases were not statutorily exempt under Public Resources Code § 21080.09, which requires an EIR for LRDPs.  (In the unpublished  part of the opinion, the Court held Petitioner had alleged sufficient facts to overcome Respondents’ statute of limitations argument for purposes of demurrer, that the case was not shown to be moot on the basis of the record before the Court, and that Petitioner had failed to show the trial court erred in denying its motion to compel production of documents pursuant to requests the trial court had found overbroad in scope.)

Continue Reading First District Holds U.C. Berkeley Campus’s Decision To Increase Student Enrollment Above Maximum Projected Level Analyzed In EIR for Long Range Development Plan Is A “Project” Under CEQA And Not Exempt Under Public Resources Code § 21089.09

Despite well-reasoned requests for depublication made by the City of Los Angeles, the California Building Industry Association (CBIA), the California State Association of Counties (CSAC) and the League of California Cities (League), the Second District’s questionable and controversial decision in Stopthemillenniumhollywood.com, et al. v. City of Los Angeles, et al. (2019) 39 Cal.App.5th 1 remains “on the books” as published precedent.  The California Supreme Court on November 26, 2019 entered its order denying the depublication requests and declining to review the matter on its own motion.  Justice Corrigan and Justice Kruger voted to depublish the opinion, about which I previously blogged here.

Continue Reading Leaving Bad Law “On The Books”: Supreme Court Denies Depublication of CEQA EIR Project Description Case That Promotes Piecemeal Litigation

In a short published opinion filed September 13, 2019, the First District Court of Appeal (Div. 4) affirmed the trial court’s judgment denying a historic preservation group’s mandate petition seeking to compel preparation of an EIR by the California Department of Corrections and Rehabilitation (CDCR or department).  Plaintiff The Lake Norconian Club Foundation (foundation) argued CDCR was required to analyze its decision not to repair and maintain the Lake Norconian Club, an unoccupied and severely deteriorated former luxury resort hotel that sits on CDCR’s property adjacent to a medium-security prison.  The hotel, which once catered to Hollywood stars and sports celebrities, was opened in 1929, closed in 1941, and was thereafter variously used as a military hospital, drug rehabilitation center, and CDCR administrative offices; now vacant, the building is listed on the National Register of Historic Places.  The trial court denied the writ on statute of limitations grounds, but the First District affirmed “on the ground that the department’s inaction is not a project subject to CEQA.”  The Lake Norconian Club Foundation v. Department of Corrections and Rehabilitation (City of Norco, Real Party in Interest) (2019) 39 Cal.App.5th 1044.

Continue Reading CDCR’s Inaction In Failing To Maintain Historic Former Hotel Not A “Project” Subject To CEQA, Holds First District

Introduction And Overview

On August 19, 2019, the California Supreme Court issued its unanimous 38-page opinion, authored by Chief Justice Cantil-Sakauye, in the CEQA “project definition” case we’ve been tracking with interest.  Union of Medical Marijuana Patients, Inc. v. City of San Diego (California Coastal Commission, Real Party in Interest) (2019) 7 Cal.5th 1171, Case No. S238563.  As anticipated based on the high court’s questioning and remarks at oral argument (see “Supreme Court Hears Oral Argument in CEQA Project Definition Case,” posted June 6, 2019), it reversed the Fourth District Court of Appeal’s decision that the City’s approval of the medical marijuana dispensary ordinance at issue was not a CEQA “project”; accordingly, it held that the City was required to treat it as such and “proceed to the next steps of the CEQA analysis.”


Continue Reading Not A CEQA “Project”? Not So Fast, Lead Agency! Supreme Court Reverses Fourth District’s Decision That San Diego’s Adoption of Medical Marijuana Dispensary Ordinance Was Not A Project Requiring CEQA Review