Social and Economic Impacts

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) ___ Cal.App.5th ___.  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  The unpublished portion of the opinion (which won’t be further discussed in detail) held that the City’s statement of overriding considerations was supported by substantial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.

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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to analyze loss of affordable housing and tenant displacement impacts, because the former apartment building had been withdrawn from the rental market for years and was vacant at the time environmental review for the hotel project commenced.  Because the relevant CEQA baseline when review commenced in 2015 was a vacant building already withdrawn from the rental market, the record did not support a fair argument that conversion of the building to hotel use would have significant impacts on Hollywood’s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.

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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.

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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.

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SB 743 was enacted in 2013 to further California’s efforts to reduce GHG emissions by encouraging transit-oriented, infill development – a strategy announced in SB 375, the “Sustainable Communities and Climate Protection Act of 2008.”  As part of SB 743, the Legislature enacted Public Resources Code § 21099(d)(1), which provides:  “Aesthetic and parking impacts of a residential, mixed-use residential, or employment center project on an infill site within a transit priority area shall not be considered significant impacts on the environment.”  In an opinion filed February 28, and subsequently certified for publication on March 22, 2018, the Second District Court of Appeal (Division 7) applied § 21099(d)(1) and held that it exempted from CEQA review alleged parking impacts of a 68-acre, mixed-use, infill project, located a quarter-mile from the Covina Metrolink commuter rail station, which the City approved via Mitigated Negative Declaration (MND) three months after the statute’s effective date.  Covina Residents for Responsible Development v. City of Covina (City Ventures, Inc., et al., Real Parties in Interest) (2018) 21 Cal.App.5th 712.  In addition to rejecting plaintiff/appellant CRRD’s CEQA challenges to the project, the Court of Appeal rejected its Subdivision Map Act (SMA) arguments and affirmed the trial court’s judgment denying its writ petition.

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In a lengthy opinion filed December 20, 2017, and belatedly ordered published on January 8, 2018, the Fourth District Court of Appeal, Division 1, affirmed the trial court’s judgment denying a writ petition asserting CEQA and land use law challenges to the City of San Diego’s (“City”) approval of a small high school on previously developed, open-space designated lands adjacent to a commercial equestrian facility. Clews Land and Livestock, LLC v. City of San Diego (Jan Dunning, et al, Real Parties In Interest) (2017) 19 Cal.App.5th 161.  The opinion underscores the critical importance of correctly interpreting and scrupulously following a local lead agency’s administrative appeal procedures in order to exhaust administrative remedies and preserve CEQA claims for judicial review.  (The non-CEQA, land use law aspects of the opinion will not be analyzed here but will be covered in a subsequent blog post by my partner, Bryan Wenter.)


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In 15-page opinion filed on September 15, and later certified for publication on October 16, 2017, the First District Court of Appeal affirmed the trial court’s judgment denying a writ petition challenging the Judicial Council of California’s (“Judicial Council”) EIR for its project to relocate and consolidate El Dorado County Superior Court operations into a single new building on the outskirts of Placerville.  Placerville Historic Preservation League v. Judicial Council of California (County of El Dorado, et al., Real Parties In Interest) (2017) 16 Cal.App.5th 187.  The Court of Appeal held that substantial evidence supported the EIR’s conclusion that “the possible economic impact of moving judicial activities from the downtown courthouse … was not likely to be severe enough to cause urban decay in downtown Placerville.”  It also held that the Council did not need to adopt mitigation mandating re-use of the courthouse to support this conclusion.

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In an opinion filed June 15, and ordered partially published on July 13, 2016, the Fourth District Court of Appeal reversed the trial court’s judgment requiring the County of San Bernardino to prepare an EIR instead of a mitigated negative declaration (MND) for its approval of a conditional use permit (CUP) authorizing a 9,100 square-foot Dollar General retail store on a 1.45-acre lot in Joshua Tree. Joshua Tree Downtown Business Alliance v. County of San Bernardino (Dynamic Development, LLC, Real Party in Interest) (4th Dist., Div. 2, 2016) 1 Cal.App.5th 677, Case No. E062479.

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In a March 4, 2016 published opinion, the Fourth District Court of Appeal reversed the trial court’s judgment requiring an EIR for a small 12-home rural subdivision project based on the “psychological and social” impacts of the proponent’s related closure of a public horse boarding facility (the “Stock Farm”) which he had operated pursuant to a CUP for 20 years on the 11.6-acre property.  Preserve Poway v. City of Poway (Harry A. Rogers, et al., Real Parties in Interest) (2016) 245 Cal.App.4th 560, 2016 WL 891405.  In addition to its primary holding that psychological, social and economic impacts are not cognizable under CEQA, the Court rendered a few other interesting rulings, including its application of the Supreme Court’s recent “CEQA-in-reverse” decision (California Building Industry Ass. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369 (“CBIA”)) in holding that asserted impacts of an existing equestrian events facility (located across the street from the project) on future project residents were also beyond CEQA’s scope.

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