In a published decision filed October 31, 2014 (Paulek v. California Department of Water Resources (4th Dist., Div. 2, 2014) 231 Cal.App.4th 35, Case No. E060038), the Fourth District Court of Appeal affirmed the Riverside County Superior Court’s judgment denying a petition for a writ of mandate challenging an EIR for the Perris Dam Remediation Project.  The Department of Water Resources’ (“DWR”) DEIR proposed three activities:  (1) remediating the dam’s structural seismic deficiencies; (2) replacing its outlet tower; and (3) creating a new “Emergency Outlet Extension.”  The FEIR addressed a modified project including only the first two components and splitting the emergency outlet extension into a separate project and environmental review process.
Continue Reading Fourth District Addresses CEQA Issues Concerning Standing, Mitigation,Baseline, Piecemealing, And Responses To Comments In Affirming Judgment Upholding Perris Dam Remediation Program EIR

On October 1, 2014, the California Supreme Court  granted the Real Party in Interest developer’s petition for review in Sierra Club v. County of Fresno (5th Dist. 2014) 226 Cal.App.4th 704, now unciteable and pending review as Supreme Court Case No. S219783.  The significant portions of the Court of Appeal’s decision were previously summarized in detail several months ago in this blog.  (SeeFifth District Decides Significant CEQA Air Quality/Health Impact Analysis and Mitigation Issues in the Sierra Club v. County of Fresno” by Arthur F. Coon, posted June 16, 2014.)
Continue Reading Supreme Court Adds Another CEQA Case To Its Docket, Will Review Fifth District’s Sierra Club v. County of Fresno (“Friant Ranch”) Decision

In a lengthy, mostly-unpublished opinion filed on August 14, 2014, the First District Court of Appeal affirmed the superior court’s judgment denying a writ petition challenging the Parkmerced Development Project.  San Francisco Tomorrow, et al. v. City and County of San Francisco, et al. (Parkmerced Investors Properties, LLC, Real Parties in Interest) (1st Dist., Div. 2, 2014) 229 Cal.App.4th 498.  A 50-page portion of the 75-page opinion, which contained the court’s detailed analysis and rejection of appellant San Francisco Tomorrow’s (“SFT”) numerous general plan inconsistency and CEQA claims, was not certified for publication.  The court did certify for publication those portions of its decision:  (1) analyzing and rejecting SFT’s direct challenges to the legal adequacy of City’s general plan; (2) holding the trial court did not err in sustaining a demurrer to SFT’s procedural due process cause of action challenging the project’s development agreement; and (3) holding the trial court did not err in including in the administrative record hearing transcripts of public meetings of the Board’s Land Use and Economic Development Committee (“LUEDC”) at which the project was considered and discussed.
Continue Reading Parkmerced Project Upheld Against CEQA and General Plan Inconsistency Challenges In San Francisco Tomorrow v. City and County of San Francisco

While CEQA actions are statutorily designed as special proceedings with priority over other civil actions, and thus mandated to be heard and resolved expeditiously, when complex or controversial projects with dedicated opposition are involved this salutary statutory scheme sometimes goes off track.  A prominent example is the ongoing CEQA challenge to the environmental review for the Central Valley to San Francisco route of the High-Speed Rail Project, which involves lawsuits that have stretched over parts of 7 years and are not yet concluded — although a recent appellate decision appears to have brought them a step closer to the driving of the final CEQA litigation spike.
Continue Reading Of High Speed Rails and Litigation Snails: The Train Rolls On As Third District Rejects Additional CEQA Challenges To High-Speed Rail Authority’s Revised Final Program EIR Analyzing Central Valley To San Francisco Bay Area Track Route

On July 7, 2014, the First District Court of Appeal filed its published opinion affirming the trial court’s judgment upholding the EIR for the Treasure Island/Yerba Buena Island Project.  Citizens for a Sustainable Treasure Island v. City and County of San Francisco, et al. (Treasure Island Community Development LLC, RPI), 227 Cal.App. 4th 1036 (1st Dist. 2014).
Continue Reading Whatever the EIR’s Name, CEQA’s Rules For Substantive Content and Subsequent Review Remain The Same: First District Upholds EIR for Treasure Island Redevelopment Project

In a lengthy and scholastic published opinion filed May 27, 2014, the Fifth District Court of Appeal reversed and remanded the trial court’s decision, which had upheld the EIR and other approvals (including a General Plan Amendment, Specific Plan, rezoning, and Development Agreement) for the Friant Ranch project.  The proposed project was a master-planned senior community to be located on 942 acres of unirrigated grazing land adjacent to Friant near the San Joaquin River.  Sierra Club v. County of Fresno (5th Dist. 2014) __ Cal.App.4th __, 2014 WL 2199317.  The Court of Appeal rejected Plaintiffs’ and Appellants’ claims of General Plan inconsistency and inadequate hydrogeology and wastewater disposal analysis, but found the EIR’s air quality impacts analysis insufficient and its related mitigated measures vague, unenforceable and improperly deferred.  The lengthy opinion contains various holdings and analyses of interest to CEQA and land use practitioners and their clients; while few break truly new ground, many serve as helpful reminders, primers and interstitial analyses of settled principles.  Key takeaways in this regard include:
Continue Reading Fifth District Decides Significant CEQA Air Quality/Health Impact Analysis and Mitigation Issues In Sierra Club v. County of Fresno

In a partially-published opinion filed January 30, 2014, the First District Court of Appeal, Division 3, reversed the trial court’s judgment denying a writ petition, and held that Caltrans must correct certain deficiencies in its EIR for a highway construction project to realign a 1-mile stretch of US Route 101 through Richardson Grove State Park (Park).  (Lotus v. Department of Transportation, et al. (1st Dist., Div. 3, 1/30/14) 223 Cal.App.4th 645.)  While rejecting many of appellants’ challenges, the Court of Appeal in the published portion of its opinion held the EIR “failed to properly evaluate the significance of impacts on the root systems of old growth redwood trees adjacent to the highway.”
Continue Reading CEQA Requires CalTrans’ EIR to Separately Analyze Significance of Highway Project’s Impacts on Protected Old Growth Redwoods’ Root Zones Prior to Discussing Mitigation and Concluding Impacts are Mitigated

The EIR has long been the judicially-proclaimed “heart of CEQA” because it represents the culmination of the statute’s environmentally-protective purposes and objectives.   Yet the legal “expiration date” for the document embodying CEQA’s highest purposes is often subject to debate and confusion.  A public agency’s reliance on an “old” EIR is inherently fraught with the risk of legal challenge by project opponents.  But, as a recent First District decision reminds, such reliance may be perfectly proper under CEQA’s applicable rules, which focus in this context on not “reinventing the wheel” – the “wheel” being the EIR – without very good reason to do so; they also defer to the lead agency’s reasoned decision in this regard.
Continue Reading First District Rejects CEQA Challenge To City of Napa’s Reliance On Prior General Plan EIR For Housing Element Update Project

In a recent decision extensively analyzing and applying CEQA’s rules on alternatives analysis, recirculation, and a petitioner’s burden to show agency error, the Third District Court of Appeal affirmed the Nevada County Superior Court’s judgment denying a writ petition challenging a commercial real estate project.  South County Citizens for Smart Growth v. County of Nevada (3d Dist., 10/8/13) 221 Cal.App.4th 316.

Plaintiff “Smart Growth” challenged County’s approval of the 20-acre Higgins Marketplace Project being developed by Katz Kirkpatrick Properties (KKP) in southwestern Nevada County.  The Draft EIR (DEIR) analyzed subdivision of the site into 10 parcels, with approximately 80,000 square feet of retail uses, two fast food restaurants, 482 parking stalls, reservation of 5 acres for future development of 42,000 square feet of light industrial and office uses, and preservation of about 3.26 acres of wetlands with a 25-foot buffer.  It identified three significant and unavoidable impacts – two traffic impacts and one cumulative air quality impact – and found all other impacts would be less than significant with mitigation.  It analyzed four (4) project alternatives, including the CEQA-mandated no project alternative; a restricted turning access alternative to try to avoid SR 49 impacts; a business park alternative under current general plan designations (designed to reduce traffic and noise); and a redesign/reduced density alternative which would eliminate 6,500 feet of commercial development, relocate the fast food restaurants, and provide greater buffers to reduce biological, noise, visual and traffic impacts.

Continue Reading Third District Holds CEQA Does Not Require Recirculation Based On Staff-Recommended Alternative Raised After Preparation of Final EIR