In a published decision filed June 12, 2018, the Second District Court of Appeal (Div. 6) held that the same broad definition of a “project” that mandates more extensive CEQA review of activities undertaken or approved by public agencies also applies in determining the scope of statutory exemptions that serve to exempt certain projects from CEQA review. County of Ventura v. City of Moorpark, Broad Beach Geologic Hazard Abatement District (2018) 24 Cal.App.5th 377. The Court of Appeal affirmed the trial court’s judgment to the extent it rejected Ventura County’s CEQA, preemption, and extraterritorial regulation challenges to a settlement agreement between the City of Moorpark and the Broad Beach Geologic Hazard Abatement District (BBGHAD), a state law entity created to carry out a Malibu beach restoration project. But it reversed with directions to declare void (as unlawful abdications of BBGHAD’s police power) certain of the settlement agreement’s provisions which severely limited BBGHAD’s authority to modify project haul routes in the event of changed circumstances.
Standard of Review
Filtering The CEQA Noise: First District Upholds Santa Rosa’s Negative Declaration For “Dream Center” Youth Housing Project, Holds Non-Expert Predictions Of Significant Noise Impacts Failed To Raise “Fair Argument” Supported By Substantial Evidence
By Arthur F. Coon on
A development project’s potential noise impacts can implicate complex and technical issues under CEQA, particularly where those impacts are asserted, in litigation by project opponents challenging a negative declaration, as the sole basis an EIR should have been required. Such was certainly the case in Charles T. Jensen v. City of Santa Rosa (Social Advocates For Youth, Real Party in Interest) (1st Dist. 2018) 23 Cal.App.5th 877, a dense 24-page opinion filed by the Court of Appeal for the First Appellate District (Division 4) on May 1, and later ordered certified for publication on May 24, 2018.
First District Rejects Numerous CEQA Challenges To RFEIR For Propane Recovery Project At Phillips 66 Company’s Rodeo Oil Refinery, Affirms Judgment Issuing Limited Writ
In an opinion filed March 20, and later certified for publication on April 12, 2018, the First District Court of Appeal (Division 3) affirmed a limited peremptory writ of mandate issued by the Contra Costa County Superior Court requiring the County to set aside an EIR and land use permit for Phillips 66 Company’s “Propane Recovery Project” at its oil refinery in the City of Rodeo, pending County’s correction of specified inadequacies in the EIR’s air quality analysis. Rodeo Citizens Association v. County of Contra Costa (Phillips 66 Company, Real Party in Interest) (2018) 22 Cal.App.5th 214. Unsatisfied with the trial court’s grant of limited relief and denial of its additional CEQA challenges to the EIR (based on an allegedly defective project description and deficient GHG and hazard analyses), plaintiff/appellant Rodeo Citizens Association (“RCA”) appealed as to those issues, but the Court of Appeal rejected its arguments and affirmed the writ as issued by the trial court.
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
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.
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
By Arthur F. Coon on
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.
Fifth District Holds CARB Violated CEQA And APA In Approving Modifications To Truck And Bus Regulation
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).
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
By Arthur F. Coon on
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.
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
By Arthur F. Coon on
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) 20 Cal.App.5th 1. 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[.]”
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, 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.
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 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.)