On May 17, 2020, the California Supreme Court granted review of the First District Court of Appeal’s controversial and much criticized published decision in Make UC a Good Neighbor v. Regents of University of California (2023) 88 Cal.App.5th 656, which held the University’s long-range campus development plan (LRDP) EIR inadequate, throwing a monkey wrench into its efforts to redevelop and build much-needed student and homeless housing at the historic People’s Park site. (My March 3, 2023 post on the Court of Appeal’s decision can be found here.)Continue Reading California Supreme Court Grants Review In Controversial “People’s Park”/Student Housing CEQA Case
On April 7, 2023, the Third District Court of Appeal filed a lengthy published opinion – the latest installment in one of the longer ongoing CEQA battles in recent memory – affirming a judgment finding an EIR for the Federal relicensing of Oroville Dam and related hydropower facilities legally adequate. County of Butte and County of Plumas, et al v. Dept. of Water Resources (2023) 90 Cal.App.5th 147.Continue Reading That Dam Case (Again): Third District Upholds Oroville Hydropower Facilities Relicensing EIR Against Numerous CEQA Challenges
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
In a 53-page published opinion filed October 8, 2021, the Fourth District Court of Appeal mostly affirmed, but reversed in part, a judgment in a CEQA action challenging two sets of projects of the City of San Diego to underground overhead utility wires in several neighborhoods. McCann v. City of San Diego (2021) 70 Cal.App.5th 51. The opinion addressed and resolved a number of significant and interesting CEQA claims and issues involving the exhaustion doctrine; procedures for administratively appealing CEQA exemption determinations (and related due process notice issues); piecemealing; project description; aesthetics; and proper methodology for determining the significance of GHG emissions impacts through assessing a project’s consistency with a local Climate Action Plan (CAP).
Continue Reading Fourth District Addresses Numerous Significant CEQA Issues In Action Challenging City of San Diego’s Utility Undergrounding Projects
In a published opinion filed August 19, 2021, the Second District Court of Appeal reversed a judgment of the Los Angeles County Superior Court that found fault with the EIR for an improvement project within the San Gabriel Mountains National Monument portion of the Angeles National Forest. Save Our Access–San Gabriel Mountains v. Watershed Conservation Authority (2021) 68 Cal.App.5th 8. The trial court had rejected plaintiff’s claims that CEQA required the EIR to analyze alternatives beyond the “no project” alternative, and that the project was inconsistent with applicable land use and management plans, but issued a writ requiring additional analysis of the project’s parking reduction “impacts.” In resolving the ensuing appeals of both parties, the Court of Appeal reversed the judgment on the parking issue, finding that reduction in parking is a social not environmental, impact and that plaintiff had failed to identify any secondary adverse physical effects on the environment resulting from the reduction. It affirmed the remainder of the judgment denying plaintiff’s other claims, and reversed the trial court’s fee award to plaintiff as compelled by its disposition of the merits.
Continue Reading Second District Confirms Parking Is (Still) Not A CEQA Impact, Reverses Judgment That Found EIR For San Gabriel Mountains Wilderness Recreation And Preservation Project Deficient For Not Sufficiently Analyzing “Impact” Of Reducing Recreational Parking
In an opinion filed April 23, and later certified for publication on May 13, 2021, the Fourth District Court of Appeal affirmed in part an order denying an anti-SLAPP (Strategic Lawsuit Against Public Participation) motion, and held that a malicious prosecution action could proceed against losing CEQA plaintiffs who had unsuccessfully challenged a Mitigated Negative Declaration (MND), but not against their attorneys. Jan Dunning, et al. v. Kevin K. Johnson, APLC, et al. (4th Dist. 2021) 64 Cal. App. 5th 156. While the merits of the malicious prosecution action have yet to be determined, the Court of Appeal’s ruling that the action could even proceed is itself significant given the daunting hurdle posed by the anti-SLAPP statute, and should give pause to project opponents who think that meritless CEQA litigation lacking probable cause and brought with malice can be pursued without potential consequence.
Continue Reading Is More Litigation the Remedy for Meritless CEQA Litigation? Fourth District Concludes Malicious Prosecution Action Against Losing CEQA Plaintiffs Survives Anti-SLAPP Motion
In an opinion filed September 5, and later certified for partial publication on October 3, 2019, the Third District Court of Appeal affirmed a judgment upholding the City of Chico’s EIR and related statement of overriding considerations for Walmart’s project to expand an existing store, add a gas station, and create two new outparcels for future commercial development. Chico Advocates for a Responsible Economy v. City of Chico (Walmart Inc., Real Party in Interest) (2019) 40 Cal.App.5th 839. The published portion of the Court’s opinion rejects plaintiff/appellant CARE’s challenges to the EIR’s “robust 43-page urban decay analysis,” holding as a matter of law that “the potential loss of close and convenient shopping is not an environmental issue that must be reviewed under CEQA” and that the EIR’s methodology for analyzing urban decay was supported by substantial evidence. The unpublished portion of the opinion (which won’t be further discussed in detail) held that the City’s statement of overriding considerations was supported by substantial evidence, did not need to “describe in detail the weight accorded to the various aspects of the agency’s balancing of competing public objectives,” and did not need to include findings “reconciling” the project approval with the CIty’s rejection of an earlier, materially different expansion project in 2009.
Continue Reading Third District Rejects CEQA Challenges To Chico Walmart Expansion Project EIR’s Urban Decay Analysis And City’s Statement Of Overriding Considerations
In an opinion originally filed June 28, and later certified for partial publication on July 22, 2019 (upon the request of the California Building Industry Association), the Second District Court of Appeal affirmed a judgment denying a CEQA writ petition challenging a project converting a vacant former apartment building into a boutique hotel in Los Angeles’ Hollywood area. Hollywoodians Encouraging Rental Opportunities (HERO) v. City of Los Angeles et al. (Millennium Settlement Consulting/1850 North Cherokee, LLC et al., Real Parties in Interest) (2019) 37 Cal.App.5th 768. The MND for the project was legally adequate, and the City did not err in failing to prepare an EIR to analyze loss of affordable housing and tenant displacement impacts, because the former apartment building had been withdrawn from the rental market for years and was vacant at the time environmental review for the hotel project commenced. Because the relevant CEQA baseline when review commenced in 2015 was a vacant building already withdrawn from the rental market, the record did not support a fair argument that conversion of the building to hotel use would have significant impacts on Hollywood’s stock of rent-controlled housing or displacement of residents.
Continue Reading “Baseline” Basics: Second District Rejects CEQA Challenge To Hollywood Hotel Project MND Alleging Unanalyzed Human/Housing Displacement Impacts Because Plaintiffs Relied On Incorrect Environmental Baseline
In a lengthy published opinion filed on August 22, 2018, the First District Court of Appeal (Div. 4) affirmed the trial court’s judgment rejecting various CEQA challenges to the City of San Francisco’s (“City”) Program EIR analyzing the environmental impacts of its 2009 General Plan Housing Element, which it adopted on June 29, 2011. San Franciscans for Livable Neighborhoods v. City and County of San Francisco (2018) 26 Cal.App.5th 596. San Franciscans for Livable Neighborhoods (“SFLN”), an unincorporated association comprised of more than a dozen neighborhood organizations, had challenged the EIR – mostly unsuccessfully – in the trial court. It then appealed from adverse portions of the judgment concerning the EIR’s baseline and impact analyses for traffic, water supply, land use, and visual resources impacts; the City’s decision not to recirculate the EIR; the EIR’s alternatives analysis; and the feasibility of certain proposed mitigation measures.
Continue Reading “Growing Pains”: First District Holds Program EIR for San Francisco’s General Plan Housing Element Amendment Complies with CEQA
In an opinion filed July 16, and belatedly ordered published on August 9, 2018, the First District Court of Appeal (Division 5) affirmed the trial court’s judgment setting aside the City of Fremont’s approvals of a mixed residential/retail project (“Project”) and related Mitigated Negative Declaration (“MND”), and ordering preparation of an EIR based on the Project’s potentially significant aesthetic and traffic impacts on the Niles historical district. Protect Niles v. City of Fremont (Doug Rich, et al., Real Parties in Interest) (2018) 25 Cal.App.5th 1129. The opinion is a good reminder of the legal vulnerability of any species of negative declaration under CEQA’s applicable “fair argument” standard of review. It also provides guidance in the areas of mootness; analysis of aesthetic, historical resources, traffic level of service (“LOS”), and traffic safety impacts; the operation of traffic thresholds of significance; and the nature of substantial evidence sufficient to support a “fair argument,” both generally and in the unique “historical district” context presented by this particular case.
Continue Reading Context Matters: First District Holds CEQA Requires EIR, Not MND, To Analyze Mixed-Use Project’s Potentially Significant Aesthetic And Traffic Impacts On Fremont’s Niles Historical District