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A CEQA reform bill (SB 1451) introduced and authored by seven (7) Democrats (Senators Correa, Galgiani, Hill, Hueso, Roth, and Steinberg, and Assembly Member Mullin) would amend Public Resources Code § 21177 to heighten standing requirements for CEQA plaintiffs by requiring them to raise issues of alleged CEQA noncompliance much earlier in the administrative process to avoid forfeiting the right to later sue on such issues.
Continue Reading New CEQA Standing Reform Bill (SB 1451) Proposes Positive Changes That Would Reduce “Late Hit” Document Dumps And Extend Indefinitely Current Standing Requirements For After-Formed Organization Plaintiffs

On April 16, 2014, Miller Starr Regalia filed in the California Supreme Court a “neutral” amici brief – one in support of neither party – addressing the important “CEQA-in-reverse” issue presented in California Building Industry Association v. Bay Area Air Quality Management District, California Supreme Court, Case No. S213478.  The brief was filed on behalf of Amici Curiae League of California Cities and the Counties of Tulare, Kings, and Solano.  Cities and counties frequently serve as lead agencies with respect to proposed projects under CEQA.  The League and the three counties identified the question presented in the case as having statewide significance.

The Amici brief (authored by myself and Matt Henderson) can be accessed at the League of California Cities’ website here http://www.cacities.org/Resources-Documents/Member-Engagement/Professional-Departments/City-Attorneys/Request-Amicus-Support/Recent-Filings/Briefs-(1)/California-Building-Indusry-Assn-v-Bay-Area-Air-QuContinue Reading Miller Starr Regalia Files Neutral “CEQA-in-Reverse” Case Amici Brief in California Supreme Court on Behalf of League of California Cities and Several Counties

In an exceptionally thorough and well-reasoned opinion, the Third District Court of Appeal affirmed the trial court’s judgment denying a writ petition challenging respondent 14th District Agricultural Association’s (District) approval of a rodeo event to be held at the Santa Cruz County Fairground pursuant to the CEQA Guidelines’ Class 23 categorical exemption.  Citizens For Environmental Responsibility v. State of California ex rel 14th District Agricultural Association (3d Dist. 3/26/14) 224 Cal.App.4th 152, 17 Cal.Rptr.3d 8.  In doing so, the Court addressed and clarified important issues regarding (1) the scope of the Class 23 exemption for “normal operations of existing facilities for public gatherings” (14 Cal. Code Reg., § 15323), (2) when alleged “mitigation” measures disqualify a project from utilizing a categorical exemption, and (3) operation of the “unusual circumstances” exception to categorical exemptions.  (14 Cal. Code Reg., § 15300.2(c).)
Continue Reading Third District Construes CEQA Guidelines’ Class 23 Categorical Exemption And “Unusual Circumstances” Exception In Rejecting Challenge To Watsonville Rodeo Event

In a rare grant of review of an unpublished case, the California Supreme Court granted review on January 15, 2014 of the decision in Friends of the College at San Mateo Gardens v. San Mateo County Community College District (1st Dist., Div. 1, 9/26/13) to address the following issue presented by the District:  “If a lead agency approves modifications to a previously reviewed and approved project through an addendum, may a court disregard the substantial evidence underlying the agency’s decision to treat the proposed action as a change to a project rather than a new project, and go on to decide as a matter of law that the agency in fact approved a “new” project rather than a modification to a previously approved project, even though this “new project” test is nowhere described in CEQA or the [CEQA] Guidelines?”
Continue Reading CEQA’s Standards For Subsequent Review To Be Addressed By Supreme Court

Sometimes in the land use world, municipal planners and other regulators need to be reminded of the simple things.  For example, a fundamental precept of due process is that the rules cannot be changed in the middle of the game because doing so is arbitrary and unfair.  To some extent, this basic concept underlies or informs the law of vested rights, estoppel, stare decisis, and statutory interpretation.

The Second District’s recently published decision in Tower Lane Properties v. City of Los Angeles (2nd Dist. 2014) 224 Cal.App.4th 262, Case No. B244092, applies simple and well established land use rules that the City of Los Angeles and its planners apparently forgot – or ignored.  These include: (1) CEQA applies only to discretionary approvals; (2) grading and building permits are generally not discretionary approvals; (3) approvals of tentative maps for the subdivision of land are discretionary approvals; (4) tentative maps – or any type of subdivision map – are required only for actual subdivisions of land; and (5) an agency’s interpretation of its own ordinance is not entitled to deference if not consistent with the ordinance’s plain language, or not itself longstanding and consistent.Continue Reading Overreaching to Apply CEQA; Second District Strikes Down LA’s Attempted Mid-Game Rule Change in Tower Lane Properties

Followers of CEQA reform efforts over the past several years will have observed two general trends: (1) Legislative reform has proven difficult, incremental, and marked by political division and dealmaking; and (2) the Supreme Court has “taken up the slack” by aggressively granting review of and resolving numerous major CEQA issues.  In doing so, the high court has brought greater clarity and “common sense” to the jurisprudence defining the parameters and operation of this venerable law – a significant judicial reform effort of which CEQA has been sorely in need.  While much remains that could be done to clarify, streamline and modernize CEQA, the Supreme Court’s judicial reform effort continues with seemingly unabated vigor.
Continue Reading Supreme Court is Primary CEQA Reform Engine

As previously discussed in this blog, last year’s passage of SB 743 added a requirement in Public Resources Code § 21099(b) that the Governor’s Office of Planning and Research (OPR) develop new CEQA guidelines “for determining the significance of transportation impacts of projects within transit priority areas.” (See “CEQA, Sausages, And The Art of The Possible: A Closer Look at SB 743’s General CEQA Reform Provisions,” posted September 16, 2013; “OPR To Review Specific CEQA Guidelines Topics Proposed for 2014 Update, Solicits Public Input,” posted January 29, 2014.)  The impetus behind this change is to find an alternative to the familiar and currently prevalent  “level of service” (or “LOS”) standard for analyzing traffic impacts.
Continue Reading OPR Mulls Changes in CEQA Traffic Metrics

The lessons taught by the Fifth District Court of Appeal in its recently-published decision in Protect Agricultural Land v. Stanislaus County Local Agency Formation Commission (City of Ceres, RPI), 223 Cal.App.4th 550, are rather simple:  (1) the validity of final LAFCO approvals may only be challenged through compliance with the validation action procedures of Code of Civil Procedure sections 860 et seq. (Gov. Code, § 56103); and (2) a plaintiff should do its legal research before bringing a CEQA action to ascertain if any special procedural requirements outside of CEQA apply to the particular type of land use approvals it seeks to set aside.
Continue Reading CEQA Action Seeking to Avoid LAFCO Annexation and SOI Change Approvals is Dismissed for Failure to Comply with Procedural Requirements for Reverse Validation Actions

The Governor’s Office of Planning and Research (OPR) will undertake a comprehensive review of the CEQA Guidelines (14 Cal.Code Regs., §15000 et seq) this year and is currently soliciting public input – to be provided not later than COB on February 14, 2014 – on specific possible topics it has developed as a result of stakeholder suggestions and published on its website.  OPR’s 7-page document, dated December 30, 2013, and entitled “Possible Topics to be Addressed in the 2014 CEQA Guidelines Update,” can be found at http://www.opr.ca.gov/docs/PossibleTopics2014CEQAGuidelinesUpdate.pdf.
Continue Reading OPR To Review Specific CEQA Guidelines Topics Proposed For 2014 Update, Solicits Public Input

The California Building Industry Association (CBIA) laid out its case that CEQA contains no general directive requiring analysis of the existing environment’s impacts on a future project in a 50-page opening brief filed in the California Supreme Court on January 10, 2014.  California Building Industry Association v. Bay Area Quality Management District, Supreme Court Case No. S213478.  The Supreme Court recently granted review of the case, which involves the CBIA’s challenge to BAAQMD’s 2010 CEQA Thresholds of Significance and implementing guidelines For Toxic Air Contaminants (TACs) and particulate matter (PM2.5), limited solely to the “CEQA-in-reverse” issue.  (See “Supreme Court Will Review “CEQA-In-Reverse” Issue in CBIA Case Challenging 2010 BAAQMD Air Quality Guidelines,” by Arthur F. Coon, posted 12/9/13.)
Continue Reading CEQA-In-Reverse Case Opening Brief Filed In California Supreme Court