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When California local governments stretch their resources too far to regulate private conduct and property rights in the name of environmental protection, CEQA can make it quite onerous to undo what has been done. And one can rest assured that if any additional trees might be allowed to “fall in the forest,” CEQA plaintiffs will be close by with their ears peeled to prevent the tragedy. Such are the fundamental philosophical lessons of the Sixth District Court of Appeal’s recently published opinion in Save Our Big Trees v. City of Santa Cruz (2015) 241 Cal.App.4th 694, filed on October 23, 2015.
Continue Reading If A Tree Falls In The (Urban) Forest … Does CEQA Apply? Sixth District Holds City Of Santa Cruz’s Amendment Of Tree Protection Ordinance Not Categorically Exempt

On remand following a landmark California Supreme Court decision, the First District Court of Appeal filed its opinion affirming the trial court’s judgment on September 23 and later ordered it published on October 15, 2015. Berkeley Hillside Preservation, et al. v. City of Berkeley (1st Dist., Div. 4, 2015) 241 Cal.App.4th 943. Readers can refer to my previous post for a complete treatment of the case’s facts and the Supreme Court’s rulings. Key aspects and points of the Court of Appeal’s 19-page opinion on remand include:
Continue Reading Berkeley Hillside CEQA Cat Ex Case Redux: Kapors Get Their Mansion, First District’s Belatedly Published Opinion Upholds City’s Decision That “Unusual Circumstances” Exception Does Not Apply

In a 65-page opinion certified for publication and filed October 22, 2015, the Second Appellate District Court of Appeal affirmed the Los Angeles County Superior Court’s judgment denying writ petitions by the City of Beverly Hills (“City”) and the Beverly Hills Unified School District (“District”). Petitioners and Appellants’ actions challenged respondent Los Angeles County Metropolitan Transportation Authority’s (“LA Metro”) EIS/EIR and related approval of the Westside Subway Extension Project (the “Project”). The Project involves the extension of Metro’s Purple Line heavy rail transit (HRT) subway system to the Westside of Los Angeles through the addition of 7 stations and 9 miles of subway line, and includes a new Century City station (the “Constellation station”) to be reached through a tunnel to be constructed underneath Beverly Hills High School. The City of Beverly Hills v. Los Angeles County Metropolitan Transportation Authority (Case No. B256753) (2d Dist., Div. 4, 2015) 241 Cal.App.4th 627.
Continue Reading Second District Rejects CEQA And Fair Transit Hearing Challenges To LA Metro’s Westside Subway Extension Project In Lengthy Published Opinion

In an opinion filed September 10, and later ordered partially published on October 9, 2015, the Court of Appeal affirmed the substance of a judgment upholding an EIR for a regional shopping center renovation project in Carlsbad, California, reversing only with respect to certain cost award issues treated in an unpublished portion of the opinion. North County Advocates v. City of Carlsbad (Plaza Camino Real, LP, et al., Real Parties in Interest) (4th Dist., Div. 1, 2015) 241 Cal.App.4th 94. The published portions of the opinion address the case’s facts, applicable CEQA rules and standards of review, and traffic baseline issues; the unpublished portions address issues concerning traffic mitigation measures, the adequacy of the City of Carlsbad’s (“City”) responses to comments, and the propriety of the various aspects of the trial court’s record preparation cost awards that were made to the City and real parties (“Westfield”) as prevailing parties.
Continue Reading Fourth District Addresses CEQA Baseline Issues In Partially Published Opinion Upholding EIR For Carlsbad Shopping Mall Renovation

On August 11, 2015, the Governor’s Office of Planning and Research (OPR) released a 145-page “Preliminary Discussion Draft” of “Proposed Updates to the CEQA Guidelines” (the “Discussion Draft”). The Discussion Draft “contains [OPR’s] initial thoughts on possible amendments to the CEQA Guidelines” and proposes revisions to nearly thirty (30) sections that OPR classifies into three categories: (1) efficiency improvements; (2) substance improvements; and (3) technical improvements. If ultimately adopted in some form, the Discussion Draft’s proposals would constitute the most comprehensive update to the Guidelines since the late 1990s. The Discussion Draft’s Executive Summary describes it as “a balanced package that is intended to make the [CEQA] process easier and quicker to implement, and better protect natural and fiscal resources consistent with other state environmental policies.”
Continue Reading Proposed CEQA Guidelines Amendments: A Critique Of OPR’s “Preliminary Discussion Draft” (Part I – Proposed “Efficiency Improvements”)

In a published opinion filed September 2, 2015, the Fourth District Court of Appeal (Division 2) reversed the trial court’s judgment denying a writ petition challenging a school district’s determination that its closure of two schools and related student transfers were exempt from CEQA. Save Our Schools v. Barstow Unified School District Board of Education (2015) 240 Cal.App.4th 128. In directing on remand the issuance of a writ that would, at a minimum, mandate that the District void its exemption determination and reconsider the matter, the Court also held that the District could in further proceedings consider additional evidence not before it at the time it made its initial exemption decision, and that any challengers would have the opportunity to present additional evidence as well.
Continue Reading Back To The Chalk Board: School District’s Math Fails To Justify CEQA Categorical Exemption For School Closures

In an August 3, 2015 decision that impacts the California State University’s (CSU) plans to expand its campuses across the state, the California Supreme Court has rejected CSU’s arguments that mitigation of its projects’ off-site impacts through the payment of “fair share” fees is legally infeasible unless the Legislature appropriates funding specifically earmarked for that purpose. City of San Diego, et al. v. Board of Trustees of the California State University (2015) ___ Cal.4th ___, 2015 WL 4605356 (Case No. S199557). The Supreme Court thus affirmed the court of appeal’s judgment decertifying CSU’s 2007 EIR and related findings of infeasibility and statement of overriding considerations for its San Diego State University (SDSU) campus expansion project.
Continue Reading The “Old College Try” Flunks Out: California Supreme Court Holds CEQA Mitigation Obligation For CSU Campus Expansion Projects Extends Beyond Unsuccessful Effort To Obtain Earmarked Legislative Appropriation

In an opinion filed June 12 and ordered published on July 6, 2015, the Fourth District Court of Appeal affirmed the trial court’s judgment upholding a supplemental EIR (“SEIR 564”) for a long-planned expansion of the James A. Musick Jail Facility to accommodate 7,584 inmates. City of Irvine v. County of Orange (4th Dist., Div. 3, 2015) 238 Cal.App.4th 526. The appellate decision represents the culmination of roughly three decades of litigation efforts by the neighboring City of Irvine to stop the jail expansion. It focuses on issues including the propriety of a “supplemental” EIR, the adequacy of the SEIR’s analyses of the project’s impacts on traffic and loss of agricultural lands, and the adequacy of its responses to comments.
Continue Reading Fourth District Expounds On CEQA’s Responses To Comments Rules – And Abuses of the Process – As Well As Other Issues In Upholding Supplemental EIR For Expanded Orange County Jail Facility

In an opinion filed June 8, and ordered published on July 6, 2015, the Fourth Appellate District Court of Appeal affirmed the trial court’s judgment denying a CEQA plaintiff’s motion for attorneys’ fees under CCP § 1021.5, California’s private attorney general statute. Coalition for a Sustainable Future In Yucaipa v. City of Yucaipa (Target Stores, Inc., Real Party In Interest) (4th Dist., Div. 2, 2015) 238 Cal.App.4th 513.  The Court’s opinion explicates in detail and applies the rules governing such motions when brought on a catalyst theory, and does so in a rather unique procedural context – one in which the moving party was an unsuccessful CEQA plaintiff whose appeal of an adverse judgment became moot as a result of the developer’s abandonment of the challenged project for reasons wholly unrelated to plaintiff’s action.
Continue Reading Fourth District Holds Losing CEQA Plaintiff’s Mooted Appeal Was Not “Catalyst” To City’s Revocation Of Project Entitlements After Developer Abandoned Project; Trial Court’s Denial Of Private Attorney General Fee Motion Affirmed

In a published decision filed May 28, 2015, the Fourth District Court of Appeal reversed that part of the trial court’s judgment granting a writ of mandate and otherwise affirmed the judgment, thus upholding the City of San Diego’s Balboa Park revitalization project (“Project”) against various land use law and CEQA challenges. Save Our Heritage Organization v. City of San Diego (The Plaza de Panama Committee, Real Party in Interest) (4th Dist.2015) 237 Cal.App.4th 163.
Continue Reading Fourth District Upholds San Diego’s Balboa Park Revitalization Project Against Land Use Law And CEQA Challenges