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) ___Cal.App.5th ______.  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.

Continue Reading Redrawing CEQA’s “Parking” Lines? Second District Holds Parking Impacts of Covina Mixed-Use, Transit-Oriented Infill Project Are Statutorily Exempt From CEQA Review, Rejects Related Map Act Challenge

In a published opinion filed March 15, 2018, the Fourth District Court of Appeal (Division One) affirmed the trial court’s judgment denying a writ petition and complaint challenging the City of San Diego’s approvals of a wireless telecommunications facility to be constructed by real party Verizon Wireless in Ridgewood Neighborhood Park, a dedicated park.  Don’t Cell Our Parks v. City of San Diego (Verizon Wireless, Real Party in Interest) (2018) 21 Cal.App.5th 338.

Continue Reading Fourth District Upholds San Diego’s CEQA Class 3 Categorical Exemption Determination For Verizon’s Faux Tree Wireless Telecommunications Facility In Dedicated Public Park, Rejects City Charter Inconsistency Arguments

In a published opinion filed January 31, 2018, the Fifth District Court of Appeal affirmed the trial Court’s judgment issuing a writ of mandate voiding the California State Air Resources Board’s (“CARB”) 2014 amendments to its 2008 Truck and Bus Regulation and its related environmental review documents, which were the functional equivalent of a negative declaration under CARB’s certified regulatory program.  John R. Lawson Rock & Oil, Inc. v. State Air Resources Board (2018) 20 Cal.App.5th 77.  The 2008 regulations required retrofitting and upgrading of large diesel vehicles to the equivalent of 2010 or newer model engines to reduce emissions of diesel particulate matter (PM), nitrogen oxides (NOx), and greenhouse gases (GHGs).

Continue Reading Fifth District Holds CARB Violated CEQA And APA In Approving Modifications To Truck And Bus Regulation

In an opinion filed February 5 and later ordered published on February 27, 2018, the Sixth District Court of Appeal affirmed a judgment denying Aptos Residents Association’s (“ARA”) writ petition challenging Santa Cruz County’s approval, as categorically exempt from CEQA, of real party Crown Castle’s (“Crown”) project to extend Verizon’s wireless coverage by installing a 13-microcell Distributed Antenna System (“DAS”) in Aptos’ Day Valley area.  Aptos Residents Association v. County of Santa Cruz (Crown Castle, Inc., Real Party in Interest (2018) 20 Cal.App.5th 1039.

Continue Reading Can You Clear Me Now? Sixth District Upholds Santa Cruz County’s CEQA Categorical Exemption For Project To Install Microcell Transmitters On Utility Poles In Rural Aptos Area

In an opinion filed on January 4, and later certified for partial publication on January 30, 2018, the Fifth District Court of Appeal affirmed a trial court judgment rejecting appellant’s claim that the EIR for the City of Visalia’s general plan update improperly omitted an analysis of the plan’s potential urban decay effects.  Visalia Retail, L.P. v. City of Visalia (5th Dist. 2018) _____ Cal.App.5th _____.  A new land use policy included in the update for areas designated “Neighborhood Commercial” provided that no shopping center tenant in such areas could be larger than 40,000 square feet.  Appellant, a property owner affected by the policy, objected to the City and submitted the opinion of an experienced local commercial real estate broker that the policy would cause anchor tenant vacancies and/or lower-traffic anchors that would reduce landlords’ rental income used for maintenance and improvements, and would have other economic effects resulting in a “downward spiral of physical deterioration” and “physical blight and ‘urban decay’ deterioration[.]”

Continue Reading CEQA Does Not Require City’s General Plan Update EIR to Address Urban Decay Based on Broker’s Speculative Opinion Concerning Effects of Commercial Tenant Square Footage Cap

In a lengthy, partially published opinion filed January 12, 2018, the First District Court of Appeal (Division 3) partly affirmed, but in large part reversed, the trial court’s judgment granting a writ of mandate directing the City of Los Angeles to set aside its FEIR certification and approval of BNSF Railway Company’s (“BNSF”) project to construct a new intermodal railyard facility, near the Port of Los Angeles, to handle containerized cargo transported through the ports of Long Beach and Los Angeles.  City of Long Beach, et al., Xavier Becerra (Attorney General, as Intervener) v. City of Los Angeles, (BNSF Railway Company, Real Party in Interest) (2018) 19 Cal.App.5th 465.

Continue Reading First District Holds CEQA Exhaustion Requirements Don’t Apply to Attorney General, Upholds Adequacy of Most of EIR’s Analysis for BNSF Railyard Project Near Port of Los Angeles

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.)

Continue Reading Fourth District Rejects CEQA Challenge to MND for Small Rural High School Project Based on Challenger’s Failure to Exhaust Available Administrative Appeal and on Merits

In an opinion filed on November 30, and belatedly ordered published on December 22, 2017, the Second District Court of Appeal, Division 1, affirmed the trial court’s judgment denying all CEQA challenges asserted by plaintiff/appellant Los Angeles Conservancy (“Conservancy”) to the City of West Hollywood’s (“City”) approval of the “Melrose Triangle” project (“project”).  Los Angeles Conservancy v. City of West Hollywood (Charles Company, et al., Real Parties in Interest) (2017) ____ Cal.App.5th _____.

The project proposed office, retail, residential and restaurant uses, and public and private open space and pedestrian paseos, on a 3-acre site at the City’s western “gateway,” and called for demolition of the site’s existing structures, which included an architecturally significant building originally constructed in 1928 and potentially eligible for listing in the California Register of Historical Resources (the “9080 Building”).  By 2012 amendments, the City’s general plan called for the site’s development with an iconic “Gateway” building with exemplary architecture, and significant open space and pedestrian walkthroughs open to the sky.  Developer Charles Company’s proposed Gateway Building would occupy the space currently occupied by the 9080 Building, and other buildings and features on the site were also proposed to implement the general plan’s development vision.

Continue Reading Second District Holds Melrose Triangle Project EIR’s Alternatives Analysis and Responses to Comments Comply with CEQA, Upholds City of West Hollywood’s Findings Rejecting Historic Building Preservation Alternative as Infeasible

As another year draws near its close, a number of notable recent CEQA developments in both the legislative and regulatory arenas have occurred that bear mention.  Below are some highlights of new CEQA legislation that will be in effect in the new year, as well as significant regulatory changes in process.

Continue Reading Year-End CEQA Legislative And Regulatory Roundup – December 2017

In a lengthy, partially published opinion filed November 21, 2017, the Fifth District Court of Appeal addressed four CEQA challenges asserted by plaintiffs and appellants (“AIR”) to the sufficiency of Kern County’s 2014 Final EIR for Real Parties’ (“Alon Energy”) project to modify an existing Bakersfield oil refinery.  Association of Irritated Residents v. Kern County Board of Supervisors, et al. (Alon USA Energy, Inc., et al., Real Parties in Interest) (2017) 17 Cal.App.5th 708.   The proposed modification would allow the refinery, which has existed and operated at the site through various ownerships since 1932, to unload two unit trains (104 cars) of crude oil (150,000 barrels) per day.  The trains would carry potentially more volatile crude oil (i.e., likely to explode in a rail accident) transported from the Bakken formation in North Dakota.  The refinery would process 70,000 barrels of crude oil per day, its currently authorized maximum level, and pipe the balance of the unloaded crude to other refineries to be processed.

Continue Reading Fifth District Holds Cap-And-Trade Program Compliance Supports Refinery Project EIR’s Conclusion That GHG Emissions Are Less Than Significant, Also Addresses Important CEQA Baseline and Railroad Operation Preemption Issues