On January 25, 2023, the California Supreme Court extended to March 3, 2023 its time to grant or deny review of the Second District Court of Appeal’s published opinion in G.I. Industries v. City of Thousand Oaks (2022) 84 Cal.App.5th 814. My October 31, 2022 post on the Court of Appeal’s opinion, and my follow-up December 5, 2022 post on its modified opinion on denial of rehearing can be found here and here.
Remedies
Third District Adds Brief CEQA Severance Analysis After Rehearing In Save Our Capitol! Case, Limits Its Relief To Allow Capitol Annex Demolition To Go Forward
In an opinion on rehearing filed January 18, 2023, the Third District Court of Appeal reissued its previous published opinion in the Save Our Capitol! case (my January 2, 2023 post on which can be found here) with the addition of a few pages of discussion addressing “Relief” inserted at the end of the majority opinion just before its “Disposition.” …
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
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) ___ Cal.App.5th ___, 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.…
Petitions for Review Filed In Brown Act/CEQA Exemption Case
On December 5, 2022, the real party in interest (Arakelian Enterprises, Inc. dba Athens Services) and respondent City of Thousand Oaks both filed petitions for review in the California Supreme Court in G.I. Industries v. City of Thousand Oaks (2022) ___ Cal.App.5th ___. (My recent post on the Second District Court of Appeal’s modified opinion order, which contains a link to my original post on the case, can be found here.)
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Second District Denies Rehearing and Modifies Opinion In Brown Act/CEQA Exemption Case; CSAC and Solano County Seek Depublication In Supreme Court
The Second District Court of Appeal (Div. 6) has issued a November 22, 2022 Order modifying its opinion and denying rehearing in G.I. Industries v. City of Thousand Oaks (2022) ___ Cal.App.5th ___, without changing the judgment. That case expanded existing law under the Brown Act and CEQA by holding, on an issue of first impression, that a public agency must agendize a staff determination that a project is CEQA-exempt as an item of business for the meeting on project approval. (My October 31, 2022 post on the case can be found here.)
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Continue Reading Second District Denies Rehearing and Modifies Opinion In Brown Act/CEQA Exemption Case; CSAC and Solano County Seek Depublication In Supreme Court
Second District Holds Brown Act Requires Lead Agency To List CEQA Exemption As Item of Business On Agenda For Public Meeting When Project Already Found Exempt By Staff Is Considered For Approval
In a published opinion filed October 26, 2022, the Second District Court of Appeal (Div. 6) appears to have significantly expanded the reach of both the Brown Act and the procedural requirements of CEQA in holding, on an issue of first impression, that a public agency must list its staff’s determination that a project is exempt from CEQA as an item of business on the agenda for the meeting at which it considers the project approval. G.I. Industries v. City of Thousand Oaks, et al (Arakelian Enterprises, Inc., Real Party In Interest) (2022) __ Cal.App.5th __. The opinion thus extends San Joaquin Raptor Rescue Center v. County of Merced (2013) 216 Cal.App.4th 1167 (“San Joaquin Raptor”), which held that a public agency’s decision to adopt a CEQA document, such as an EIR or negative declaration, must be described as a distinct item of business under the Brown Act when it is to be considered at a public hearing, to the distinct context of CEQA-exempt projects.
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Continue Reading Second District Holds Brown Act Requires Lead Agency To List CEQA Exemption As Item of Business On Agenda For Public Meeting When Project Already Found Exempt By Staff Is Considered For Approval
First District Holds LA’s Water Allocations To Agricultural Lessees Were Authorized Under Existing Leases And Did Not Constitute Or Implement A Separate “Project” Subject to CEQA Review
The First District Court of Appeal filed on June 30, and later ordered published on July 26, 2022, its opinion in County of Mono v. City of Los Angeles (1st Dist. No. A162590) 81 Cal.App.5th 657. The case involves another round in the long-running controversies surrounding Los Angeles’s efforts to secure water for its populace. As the City now owns substantial acreage in the Sierra Nevada from which it takes much of its water, it serves both as landlord and water user in that region. The overlap of those two roles gave rise to the County of Mono case, in which the County sought to use CEQA litigation as leverage over the City’s water allocations to agricultural users who lease property from the City. The case holds that the City’s water allocations to the City’s agricultural lessees were authorized under its existing 2010 leases and thus did not constitute a new project subject to CEQA review before they could be lawfully implemented. The case provides guidance to practitioners on when and how CEQA applies to public contracts, and also regarding the appropriate contents of the administrative record in CEQA litigation challenging staff level actions implementing existing leases. Entitlement and litigation attorneys should accordingly both find it a useful case to review.
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Continue Reading First District Holds LA’s Water Allocations To Agricultural Lessees Were Authorized Under Existing Leases And Did Not Constitute Or Implement A Separate “Project” Subject to CEQA Review
Third District Holds CEQA Does Not Authorize “Remedy” of “Limited EIR” To Augment Deficient MND; Rather, Full EIR Must Be Prepared Where Substantial Evidence Supports Fair Argument That Any Aspect Of Project May Have Significant Environmental Effect
In a partially published opinion filed on November 3, 2021, involving the CEQA review for a bed and breakfast/commercial event project proposed on property within a Yolo County agricultural zone, the Third District Court of Appeal (in a unanimous opinion authored by Justice Robie) reaffirmed the basic CEQA principle that a “full EIR” must be prepared whenever a project may have any significant environmental effect; it thus reversed the trial court’s judgment that had allowed a deficient revised Mitigated Negative Declaration (MND) and its mitigation measures to remain intact while ordering Yolo County to also prepare an EIR limited to addressing only the project’s impacts on three species of concern (tricolored blackbird, valley elderberry longhorn beetle, and golden eagle). The Court of Appeal reversed and remanded with instructions to issue a peremptory writ directing the County to set aside its MND approval and to prepare a full EIR instead. Farmland Protection Alliance v. County of Yolo (2021) 71 Cal.App.5th 300. (In the unpublished portion of its opinion, which won’t be further discussed in this post, the Court of Appeal held the trial court was correct in finding that substantial evidence supported a fair argument that the project may have a significant impact on the beetle, thus requiring an EIR, and also concluded the trial court did not err in upholding the County’s determinations that the project was consistent with the Williamson Act and County’s zoning code.)
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Continue Reading Third District Holds CEQA Does Not Authorize “Remedy” of “Limited EIR” To Augment Deficient MND; Rather, Full EIR Must Be Prepared Where Substantial Evidence Supports Fair Argument That Any Aspect Of Project May Have Significant Environmental Effect
A Teaching Moment? First District Affirms CEQA Action Demurrer Order Finding Late-Joined Developers of UC Berkeley Campus Project Were Necessary, But Not Indispensable, Real Parties In Interest
In a published opinion filed October 21, 2021, the First District Court of Appeal affirmed the trial court’s order finding the real party developers of a UC Berkeley campus development project – undertaken for the University’s benefit, and in which it had a strong vested interest – were necessary parties, but were not indispensable parties to a CEQA action challenging the project EIR under the factors of the Code of Civil Procedure (“CCP”) § 389(b). While the action was thus properly dismissed as against those real parties upon their demurrers due to plaintiff’s failure to join them within CEQA’s 30-day limitations period, it was not required to be dismissed in its entirety and could continue to final adjudication among the remaining parties. Save Berkeley’s Neighborhoods v. The Regents of the University of California (Collegiate Housing Foundation, American Campus Communities, et al, Real Parties in Interest) (2021) 70 Cal.App.5th 705.
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Continue Reading A Teaching Moment? First District Affirms CEQA Action Demurrer Order Finding Late-Joined Developers of UC Berkeley Campus Project Were Necessary, But Not Indispensable, Real Parties In Interest
Third District Affirms CEQA And Attorneys’ Fees Judgments In Favor Of Department Of Water Resources In Monterey Agreement And Amendment Litigation
Against the backdrop of another severe drought, water supply and impact issues continue to be points of contention for water agencies, water users, conservation groups, and the state. And, of course, litigation over water is not limited to water rights and usage, but extends to related environmental review under CEQA. On September 22, 2021, the Third District Court of Appeal issued a published opinion in Central Delta Water Agency v. Department of Water Resources (2021) 69 Cal.App.5th 170, disposing of several consolidated cases and analyzing operation of the state’s massive State Water Project (SWP) through a CEQA lens. While the case does not break any new legal ground, it applies well-recognized CEQA principles to a lengthy and complex fact pattern involving multiple rounds of lengthy litigation, settlement, and EIR preparation.
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Continue Reading Third District Affirms CEQA And Attorneys’ Fees Judgments In Favor Of Department Of Water Resources In Monterey Agreement And Amendment Litigation