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In a published opinion filed March 8, 2023, the Second District Court of Appeal (Division 8) affirmed the trial court’s judgment denying writ relief in a lawsuit challenging approval of a CEQA-exempt eldercare facility project in Pacific Palisades, an oceanside area of the City of Los Angeles.  Pacific Palisades Residents Association, Inc. v. City of Los Angeles (Rony Shram, et al, Real Parties in Interest) (2023) 88 Cal.App.5th 1338.   The decision capped almost six years of “vociferous” NIMBY opposition to a much-needed project – an opposition that failed on its merits at every governmental and judicial level of review to which it was taken, yet relentlessly continued nonetheless.Continue Reading Another Call for CEQA Litigation Reform?  Second District Rejects NIMBY Group’s CEQA, Coastal Act, and Land Use Challenges, Affirms Judgment Upholding Approval of Zoning-Compliant And CEQA-Exempt Eldercare Facility On Flat, Graded, Vacant One-Acre Infill Site Surrounded By Residential and Commercial Development

In a published decision filed February 16, 2023, the Second District Court of Appeal (Division 7) affirmed a judgment denying a CEQA writ petition challenging approval of a single-family home expansion project because the petitioner group failed to exhaust administrative remedies.  Arcadians for Environmental Preservation v. City of Arcadia (Julie Wu, et al., Real Parties in Interest) (2023) 88 Cal.App.5th 418.  The Court held that the generalized and unelaborated objections, made by a member of petitioner in the City’s administrative proceedings, to the City’s Class 1 categorical exemption determination for the project failed to fairly apprise the City of petitioner’s specific objections so as to preserve them for litigation.Continue Reading Neighbor-Led Group Opposing Single-Family Home Expansion Project Failed To Exhaust Administrative Remedies By Making Sufficiently Specific Objections To City’s CEQA Class 1 Categorical Exemption Determination

In a published opinion filed February 24, 2023, the First District Court of Appeal (Div. 5) reversed a judgment upholding the adequacy of the EIR for the University of California, Berkeley’s long range campus development plan (“LRDP”) and a controversial housing development project at the historic People’s Park.  Make UC a Good Neighbor v. Regents of University of California (Resources for Community Development, Real Party in Interest) (2023 88 Cal.App.5th 656.  The opinion comes in a case that has been much publicized in popular news media as involving both development of an iconic historic site, currently plagued with crime and homelessness, and treatment of housed college students as presumptive purveyors of “party noise” environmental impacts; it has also (justifiably) resulted in renewed calls for CEQA reform, including from Governor Newsom.Continue Reading First District Reverses Judgment In Controversial “People’s Park” CEQA Case, Holds UC Regents’ Program/Project EIR For Long Range Development Plan And Site-Specific Student Housing Project At The Park Failed To Adequately Analyze Alternative Housing Sites, And Student Noise Impacts

On February 15, 2023, the California Supreme Court denied the petitions for review and issued an order decertifying the Second District Court of Appeal’s controversial (and previously published) opinion in G.I. Industries v. City of Thousand Oaks (2022) 84 Cal.App.5th 814, rev. den. and depub’d. 2/15/23 (Supreme Ct. Case No. S277439).  (My prior posts on this decision and its subsequent procedural history can be accessed by clicking on their following dates:  10/31/22; 12/5/22; and 1/30/23.) Continue Reading Supreme Court Denies Review And Depublishes Troublesome Brown Act/CEQA Exemption Decision

In an opinion in a much-publicized case, filed December 28, 2022, and later ordered published on January 26, 2023, the First District Court of Appeal (Div. 3), upheld the City of Livermore’s (“City”) approval of a 130-unit affordable housing project on a downtown infill site and its accompanying determination that the project was CEQA-exempt under Government Code section 65457 (“Section 65457”).  (Save Livermore Downtown v. City of Livermore (2023) 87 Cal.App.5th 1116 (“SLD”).)  The important opinion was ordered published based on requests submitted by City, Attorney General Rob Bonta, YIMBY, and the California Building Industry Association.Continue Reading First District Upholds Use of Government Code Section 65457 CEQA Exemption For Downtown Livermore Affordable Housing Project, Roundly Rejects Meritless Arguments of NIMBY Opposition

The 2021-2022 Legislative Session was light on CEQA amendments, and once again did not produce any significant reform.  We saw a continued focus on incentivizing affordable and infill developments on the condition that the project pay prevailing wages (AB 2011), reducing barriers for specified sustainable transit projects (SB 922), and amendments akin to “pet project exemptions” that are targeted to solving a narrower set of concerns (SB 118 and SB 886).  None of the amendments, however, more broadly limit CEQA’s reach.Continue Reading Recap of 2023 CEQA Amendments Now In Effect

While CEQA is a complicated area of law, often criticized as a “plaintiff’s sandbox,” CEQA litigation is not a “free-for-all” immune from malicious prosecution actions when it is unsuccessfully pursued with malice and without probable cause.  Such is the teaching of the First District Court of Appeal’s December 28, 2022 published opinion in Charles Jenkins et al v. Susan Brandt-Hawley et al (1st Dist., Div. 2, 2022) 86 Cal.App.5th 1357, which affirmed the trial court’s order denying an anti-SLAPP motion and allowing a malicious prosecution action to proceed against a prominent CEQA attorney and her law firm.Continue Reading When CEQA Litigation Turns Tortious: First District Affirms Order Denying Anti-SLAPP Motion, Allows Malicious Prosecution Action To Proceed Against Counsel Who Brought Unsuccessful CEQA Challenge To Single-Home Project

In an opinion filed on November 14, and later certified for publication on December 13, 2022, the First District Court of Appeal (Div. 3) affirmed a Sonoma County Superior Court judgment upholding the EIR for a 180-unit apartment complex proposed on a 15.45-acre parcel of vacant land along the Petaluma River.  Save North Petaluma River and Wetlands v. City of Petaluma (J. Cyril Johnson Investment Company, Real Party in Interest) (2022) ___ Cal.App.5th ___.  The issues considered on appeal involved the adequacy of the EIR’s environmental “baseline” for its analysis of potential special status species impacts and the adequacy of its analysis of alleged public safety/emergency evacuation impacts.
Continue Reading First District Rejects CEQA Challenges To EIR For Petaluma River Apartment Project, Upholds Special Status Species Baseline And Public Safety/Emergency Access Impacts Analyses As Supported By Substantial Evidence

A 10-page article by Holland & Knight’s Jennifer Hernandez, published this month by the Center for Jobs & the Economy/California Business Roundtable, documents that CEQA litigation targeted nearly 50,000 housing units – approximately half the state’s total annual housing production – in 2020 alone.  While Holland & Knight’s analysis of 2019-2021 CEQA lawsuit data is ongoing, the article’s “interim report”, which can be read here, states there is no expectation of change in the magnitude of anti-housing CEQA actions, which most frequently allege violations relating to analysis of climate change related impacts, i.e., GHGs and VMT.
Continue Reading CEQA vs. Housing: A Very Wrong Picture

On March 7, 2022, the Second District Court of Appeal (Div. 4) filed its published opinion in Southwest Regional Council of Carpenters, et al. v. City of Los Angeles, et al (The Icon at Panorama, LLC, Real Party in Interest) (2022) 76 Cal.App.5th 1154.  In reversing the trial court’s judgment and writ setting aside the approvals and EIR for a mixed-use commercial and residential infill development project, the Court held the Project EIR did not violate CEQA’s requirement of an accurate, stable, and finite project description even though the project itself was revised and ultimately approved with components not matching those of any individual alternative studied in the EIR.  The Court further held that the City’s addition of a fifth alternative to the Final EIR (FEIR) that was not significantly different from its other previously analyzed alternatives did not require recirculation for additional public comment, and that the City’s response to the sanitation department’s comment about local sewer line and sewage treatment plant capacity was adequate.
Continue Reading CEQA Mixed-Use “Mix and Match” Upheld: Second District Holds Stable Project Description Requirement Does Not Mean Ultimately Approved Version of Revised Mixed Use Project Must Match An Alternative Analyzed In EIR, And New Project Alternative Added to FEIR Does Not Require Recirculation