On August 17, 2016, the California Supreme Court ordered the Fourth District’s opinion in People for Proper Planning v. City of Palm Springs (2016) 247 Cal.App.4th 640 to be depublished, rendering it unciteable and of no precedential effect. I posted two previous blog entries on the Court of Appeal’s original decision and its subsequent modification.
Continue Reading Supreme Court Depublishes Quirky Fourth District CEQA/General Plan Decision
Standard of Review
Sixth District Holds CEQA’s “Fair Argument” Test Inapplicable To City Of San Jose’s Discretionary Determination That 1922 Wooden Railroad Trestle Is Not Historical Resource
By Arthur F. Coon on
A project that may cause a substantial adverse change in the significance of a “historical resource” may, for that reason, have a significant effect on the environment for purposes of CEQA. (Pub. Resources Code, § 21084.1.) And those familiar with CEQA know that, under its “fair argument” test, where there is any substantial evidence in the record that a project may have a significant effect on the environment, an EIR must be prepared. (§ 21080(d).) But just what is a “historical resource”? How is the determination of its historicity made, by whom, and by applying what standards to the relevant evidence? Those important questions are addressed by the August 12, 2016 published opinion of the Sixth Appellate District Court of Appeal in Friends of the Willow Glen Trestle v. City of San Jose (2016) 2 Cal.App.5th 457.
Continue Reading Sixth District Holds CEQA’s “Fair Argument” Test Inapplicable To City Of San Jose’s Discretionary Determination That 1922 Wooden Railroad Trestle Is Not Historical Resource
First District Rejects CEQA Challenge To “Plan Bay Area” Sustainable Communities Strategy EIR As Premised On Fundamental Misinterpretation of SB 375
By Arthur F. Coon on
In a 58-page published opinion filed June 30, 2016, the First District Court of Appeal affirmed the Alameda County Superior Court’s judgment upholding the Metropolitan Transportation Commission’s (MTC) and Association of Bay Area Government’s (ABAG) EIR for and approval of “Plan Bay Area,” the agencies’ first Sustainable Communities Strategy (SCS) prepared pursuant to California’s landmark “Sustainable Communities and Climate Protection Act of 2008” (SB 375). Bay Area Citizens v. Association of Bay Area Governments, et al (2016) 248 Cal.App.4th 966.
Continue Reading First District Rejects CEQA Challenge To “Plan Bay Area” Sustainable Communities Strategy EIR As Premised On Fundamental Misinterpretation of SB 375
Second District Upholds Application of CEQA’s Class 3 Categorical Exemption For New Small Structures To City’s Approval of Small Car Wash/Coffee Shop Project, Rejects Appellants’ Attempt To Invoke Unusual Circumstances Exception
By Arthur F. Coon on
In a published opinion filed July 21, 2016, the Second District Court of Appeal affirmed the trial court’s judgment rejecting plaintiffs/residential neighbors’ (“Appellants”) CEQA challenge to the City of Redondo Beach’s (“City”) approval of 4,080 square foot car wash/coffee shop (on a 25,000 square-foot urban lot) based on CEQA Guidelines § 15303’s “Class 3” categorical exemption for development of “new, small facilities or structures [and] installation of small new equipment and facilities in small structures.” Steven Walters, et al. v. City of Redondo Beach (Redondo Auto Spa, et al., Real Parties in Interest) (2d Dist., Div. 6, 2016) 1 Cal.App.5th 809, Case No. B258638.
Continue Reading Second District Upholds Application of CEQA’s Class 3 Categorical Exemption For New Small Structures To City’s Approval of Small Car Wash/Coffee Shop Project, Rejects Appellants’ Attempt To Invoke Unusual Circumstances Exception
Discovery Rule Does Not Postpone Accrual of CEQA Cause of Action; Events Specified In CEQA Statute of Limitations Provide Constructive Notice of Project Approval or Commencement
By Arthur F. Coon on
In a short but significant published opinion filed July 19, 2016, the First District Court of Appeal affirmed the San Francisco County Superior Court’s judgment of dismissal following the sustaining of demurrers (without leave to amend) to a CEQA action as time-barred. Communities for a Better Environment, et al. v. Bay Area Air Quality Management District (Kinder Morgan Material Services, LLC, et al., Real Parties In Interest) (1st Dist., Div. 1, 2016) 1 Cal.App.5th 715, Case No. A14364. The Court of Appeal held there was no reasonable possibility that plaintiffs (CBE) could amend the mandamus petition to allege their CEQA action was timely filed by virtue of the discovery rule because that rule does not apply where one of the triggering events of CEQA’s statute of limitations has occurred.
Continue Reading Discovery Rule Does Not Postpone Accrual of CEQA Cause of Action; Events Specified In CEQA Statute of Limitations Provide Constructive Notice of Project Approval or Commencement
Supreme Court CEQA Subsequent Review Case Briefing Completed And Case Submitted (Apparently)
By Arthur F. Coon on
Posted in CEQA Guidelines, Legislation, Litigation, Mitigation, Reform, Standard of Review, Subsequent Review
As a brief follow up to my earlier posts of April 26, May 4, and May 12, 2016, it appears that supplemental and amicus briefing has ended and that the matter has now been submitted for decision in the important Supreme Court “subsequent review” case, Friends of the College of San Mateo Gardens v. San Mateo Community College District, Case No. S214061.
Continue Reading Supreme Court CEQA Subsequent Review Case Briefing Completed And Case Submitted (Apparently)
Fourth District Modifies CEQA Categorical Exemption Opinion Involving Palm Springs General Plan Amendment Without Altering Judgment
By Arthur F. Coon on
In an order filed June 17, 2016, the Court of Appeal for the Fourth Appellate District (Division 2) modified its opinion filed April 22, and ordered partially published May 20, 2016, in People for Proper Planning v. City of Palm Springs (2016) ___ Cal.App.4th ___, 2016 WL 1633062. The modification, which did not affect the judgment, substituted at page 8 of the prior slip opinion a paragraph discussing the operation of categorical exemptions and the “unusual circumstances” exception thereto, and cited to the relevant standards enunciated by the Supreme Court’s decision in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1105, 1114. It also added a footnote to page 9 stating: “The City does not dispute that this case presents “unusual circumstances.””
Continue Reading Fourth District Modifies CEQA Categorical Exemption Opinion Involving Palm Springs General Plan Amendment Without Altering Judgment
Home(s) In The “Range”: Fourth District Overturns CEQA Exemption For City of Palm Springs’ General Plan Amendment Removing Minimum Residential Density Requirements
By Arthur F. Coon on
In a brief – and somewhat odd – opinion filed April 22, and belatedly ordered partially published on May 20, 2016, the Fourth District Court of Appeal reversed a trial court judgment denying a petition for writ of mandate challenging a General Plan Amendment (GPA) adopted by the City of Palm Springs as categorically exempt from CEQA. People for Proper Planning v. City of Palm Springs (4th Dist., Div. 2, 2016) 247 Cal.App.4th 640, Case No. E062725. The Court held the trial court erred in upholding the City’s positions that the GPA, which eliminated minimum density requirements for all residential land use categories, was exempt from CEQA review under the Class 5 categorical exemption and because it allegedly did not change the environmental “baseline,” i.e., the City’s alleged preexisting practice of ignoring the General Plan’s minimum density provisions (and, hence, its allowable density ranges) when acting on residential development applications. In light of its CEQA ruling requiring reversal and further environmental (and necessarily General Plan consistency) analyses by the City, the Court held that it need not reach appellant PFPP’s other arguments that the GPA rendered the General Plan internally inconsistent, and violated statutory requirements that City accommodate its fair share of regional housing needs for all income levels.
Continue Reading Home(s) In The “Range”: Fourth District Overturns CEQA Exemption For City of Palm Springs’ General Plan Amendment Removing Minimum Residential Density Requirements
Fourth District Upholds EIR For Cadiz Mojave Desert Groundwater Pumping Project Against Various CEQA Challenges
In the second of two published opinions filed May 10, 2016, the Fourth District Court of Appeal affirmed the trial court’s judgment upholding the lead agency designation and EIR for a controversial project proposing to pump 50,000 acre-feet annually for a 50-year period from an aquifer underlying Cadiz, Inc.’s Mojave Desert property in San Bernardino County. Center For Biological Diversity, et al. v. County of San Bernardino, et al., (4th Dist., Div. 3, 2016) 247 Cal.App.4th 326, Case No. G051058. (For my post covering the Court’s related published opinion, see “Fourth District Rejects CEQA Challenges To Large Mojave Desert Groundwater Pumping Project In Separate Published Opinions,” by Arthur F. Coon, posted May 11, 2016.)
Continue Reading Fourth District Upholds EIR For Cadiz Mojave Desert Groundwater Pumping Project Against Various CEQA Challenges
The Plot Thickens: California Supreme Court Vacates Submission Of Just-Argued CEQA Subsequent Review Case, Orders Supplemental Briefing
By Arthur F. Coon on
Posted in CEQA Guidelines, Legislation, Litigation, Mitigation, Reform, Standard of Review, Subsequent Review
In orders issued May 11, 2016, one week after the May 4 oral argument and submission of the cause for decision, the California Supreme Court vacated the submission and ordered supplemental briefing in Friends of the Collage at San Mateo Gardens v. San Mateo County Community College District, Case No. S214061.
Continue Reading The Plot Thickens: California Supreme Court Vacates Submission Of Just-Argued CEQA Subsequent Review Case, Orders Supplemental Briefing