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In an opinion in a much-publicized case, filed December 28, 2022, and later ordered published on January 26, 2023, the First District Court of Appeal (Div. 3), upheld the City of Livermore’s (“City”) approval of a 130-unit affordable housing project on a downtown infill site and its accompanying determination that the project was CEQA-exempt under Government Code section 65457 (“Section 65457”).  (Save Livermore Downtown v. City of Livermore (2023) 87 Cal.App.5th 1116 (“SLD”).)  The important opinion was ordered published based on requests submitted by City, Attorney General Rob Bonta, YIMBY, and the California Building Industry Association.Continue Reading First District Upholds Use of Government Code Section 65457 CEQA Exemption For Downtown Livermore Affordable Housing Project, Roundly Rejects Meritless Arguments of NIMBY Opposition

In a published opinion filed December 6, 2022, the Third District Court of Appeal reversed in part and affirmed in part the trial court’s judgment denying writ petitions in consolidated actions challenging the EIR for a major state government project affecting the Historic State Capitol Building and Annex in Sacramento.  Save Our Capitol! v. Department of General Services (Joint Committee On Rules of the California State Senate and Assembly, Real Party in Interest)/Save the Capitol, Save the Trees v. Department of General Services, et al. (2022) 85 Cal.App.5th 1101.  In the project’s final iteration, Defendant/Respondent Department of General Services and Real Party/Respondent Joint Committee, etc. (collectively, “DGS”) proposed to demolish the Historic Capitol’s 325,000 square-foot Annex, replace it with a larger 525,000 square-foot Annex building, construct a 40,000 square-foot underground visitor center attached to the Historic Capitol’s west side, and construct a 150-space underground parking garage east of the new Annex.  While rejecting many of plaintiffs’ CEQA challenges to the project’s final EIR (FEIR), the Court of Appeal found merit in claims that the EIR’s project description, analyses of impacts to historical resources and aesthetics, and alternatives analysis were deficient.  Accordingly, it directed issuance of a writ vacating the EIR certification and project approval and directing DGS to revise and recirculate the EIR’s deficient sections before again considering project approval. Continue Reading A “Capitol” Offense: Third District Holds State Capitol Building Annex/Visitor Center Project EIR Violated CEQA Due To Inadequate Project Description And Analyses Of Historical Cultural Impacts, Aesthetics, And Project Alternatives

In an opinion filed on November 14, and later certified for publication on December 13, 2022, the First District Court of Appeal (Div. 3) affirmed a Sonoma County Superior Court judgment upholding the EIR for a 180-unit apartment complex proposed on a 15.45-acre parcel of vacant land along the Petaluma River.  Save North Petaluma River and Wetlands v. City of Petaluma (J. Cyril Johnson Investment Company, Real Party in Interest) (2022) ___ Cal.App.5th ___.  The issues considered on appeal involved the adequacy of the EIR’s environmental “baseline” for its analysis of potential special status species impacts and the adequacy of its analysis of alleged public safety/emergency evacuation impacts.
Continue Reading First District Rejects CEQA Challenges To EIR For Petaluma River Apartment Project, Upholds Special Status Species Baseline And Public Safety/Emergency Access Impacts Analyses As Supported By Substantial Evidence

“Yes, Virginia, there is a Santa Claus.” – Editorial by Francis Pharcellus Church first appearing in New York newspaper The Sun on September 21, 1897

In keeping with the spirit of the holiday season, it is entirely fitting that some cynical and unbelieving jurisdictions be gifted with a published judicial reminder that CEQA really does exist – and that its required procedures must be scrupulously followed.  In an opinion filed November 18, and later ordered published on December 5, 2002, the First District Court of Appeal (Div. 4) bestowed such a gift upon the City and County of San Francisco (“City”), although the “jury is out” on whether the latter lead agency will receive it in the proper spirit or view it as humbug and the proverbial lump of coal.  Saint Ignatius Neighborhood Association v. City and County of San Francisco (2022) ___ Cal.App.5th ___.Continue Reading “Yes, San Francisco, There Is A CEQA”: First District Reverses Judgment Upholding City’s Categorical Exemption Determinations For Project To Add Four 90-Foot Tall Light Standards To High School Stadium In Residential Neighborhood

The First District Court of Appeal filed on June 30, and later ordered published on July 26, 2022, its opinion in County of Mono v. City of Los Angeles (1st Dist. No. A162590) 81 Cal.App.5th 657.  The case involves another round in the long-running controversies surrounding Los Angeles’s efforts to secure water for its populace.  As the City now owns substantial acreage in the Sierra Nevada from which it takes much of its water, it serves both as landlord and water user in that region.  The overlap of those two roles gave rise to the County of Mono case, in which the County sought to use CEQA litigation as leverage over the City’s water allocations to agricultural users who lease property from the City.  The case holds that the City’s water allocations to the City’s agricultural lessees were authorized under its existing 2010 leases and thus did not constitute a new project subject to CEQA review before they could be lawfully implemented. The case provides guidance to practitioners on when and how CEQA applies to  public contracts, and also regarding the appropriate contents of the administrative record in CEQA litigation challenging staff level actions implementing existing leases.  Entitlement and litigation attorneys should accordingly both find it a useful case to review.
Continue Reading First District Holds LA’s Water Allocations To Agricultural Lessees Were Authorized Under Existing Leases And Did Not Constitute Or Implement A Separate “Project” Subject to CEQA Review

On July 13, 2022, the California Supreme Court denied numerous depublication requests with respect to, and declined to review on its own motion, the First District Court of Appeal’s decision in Save the Hill Group v. City of Livermore (2022) 76 Cal.App.5th 1092, S. Ct. Case No. S274754; Ct. App. Case No. A161573.  My May 26, 2022 post on the League of Cities’ and CSAC’s depublication requests, which were shortly thereafter followed by further depublication requests by Respondent City of Livermore and the California Building Industry Association, can be found here, and my April 4, 2022 post analyzing the Court of Appeal’s opinion which can be found here.
Continue Reading California Supreme Court Denies Depublication Requests In Livermore CEQA Case Addressing “No Project” Alternative

On May 25, 2022, the League of California Cities (“League”) and California State Association of Counties (“CSAC”) filed a 10-page letter with the California Supreme Court requesting it to depublish the First District Court of Appeal’s recent decision in Save the Hill Group v. City of Livermore, Case No. A161573 (my April 4, 2022 post on which can be found here).
Continue Reading League of California Cities and CSAC File Request for Depublication of First District Decision Addressing Sufficiency of CEQA-Mandated “No Project” Alternative In Housing Project EIR

On May 12, 2022, the First District Court of Appeal filed a 108-page published opinion affirming a judgment denying a CEQA writ petition that challenged Marin County’s approval of a 43-lot single-family residential subdivision on a 110-acre parcel atop a mountain overlooking the Town of Tiburon and San Francisco Bay.  Tiburon Open Space Committee v. County of Marin (The Martha Company, Real Party in Interest, and Town of Tiburon, Intervenor and Appellant) (2022) 78 Cal.App.5th 700.  Apart from its factual background of nearly a half-century of intense legal battles over (and effectively blocking) the property’s development – which the Court described as “this woeful record before us” – the decision is notable for its legal analysis of how CEQA applies when a lead agency’s discretion in considering a project for approval is constrained by legal obligations.  While in this case the legal obligations stemmed from stipulated federal court judgments mandating that the County approve a minimum level of development on the property, the Court’s reasoning and holdings that the scope of CEQA adjusts and is limited commensurate with legal limitations on an agency’s discretionary authority will clearly apply to other contexts.  Most obviously, and topically, they plainly will apply to housing development projects when state housing laws impose legal obligations that limit local agencies’ legal authority to disapprove or reduce the density of those projects.  (See, e.g., Gov. Code, § 65589.5 (the “Housing Accountability Act”).)
Continue Reading “This Woeful Record”: First District Affirms Judgment Rejecting CEQA Challenges To Marin County’s Approval of 43-Home Mountaintop Subdivision Opposed For Nearly Five Decades By Neighbors And Town of Tiburon

In an opinion filed on April 12, and later ordered published on May 11, 2022, the Third District Court of Appeal reversed a judgment that had denied a CEQA writ petition challenging the City of Mount Shasta’s issuance of a wastewater permit for the Crystal Geyser Water Company’s bottling plant project.  We Advocate Through Environmental Review, et al v. City of Mount Shasta, et al (Crystal Geyser Water Company, Real Party in Interest) (2022) 78 Cal.App.5th 629.
Continue Reading Responsible Agency Committed Fundamental CEQA Procedural Violation By Not Making Public Resources Code Section 21081 Findings for Significant Effects Associated With Its Wastewater Permit For Water Bottling Plant Project

In a published decision filed March 30, 2022, the First District Court of Appeal (Division 5) reversed a trial court judgment upholding the reissued final environmental impact report (“RFEIR”) for a 44-single family residence project on a unique, species- and habitat- rich 32-acre site in the City of Livermore’s Garaventa Hills area.  Save the Hill Group v. City of Livermore (Lafferty Communities, Inc., Real Party in Interest) (2022) 76 Cal.App.5th 1092. Both the trial court and Court of Appeal agreed that the RFEIR’s analysis of the “no project” alternative was substantively inadequate, because it lacked information about the feasibility of purchase and preservation options that was necessary for the City Council to make an informed, reasoned decision, but the Court of Appeal disagreed with the trial court’s conclusion that Petitioner/Appellant Save the Hill’s failure to exhaust on this issue barred judicial consideration of it.  The Court of Appeal rejected Appellant’s remaining arguments that the RFEIR’s analysis and mitigation of the project’s vernal pool fairy shrimp (“VPFS”) and wetlands impacts were inadequate, and that its identified compensatory mitigation for permanent sensitive habitat loss was inadequate.  (In a brief concluding portion of the opinion that won’t be further discussed here, the Court also held Appellant had forfeited and lacked standing to raise the issue of City’s alleged mitigation obligations under two prior settlement agreements to which Appellant was not a party.)
Continue Reading First District Holds EIR’s Analysis of “No Project” Alternative To City of Livermore Residential Development Violated CEQA By Failing To Discuss Feasibility Of Purchasing And Preserving Habitat-Rich Garaventa Hills Project Site, Also Addresses Significant Issues Involving Exhaustion Doctrine And Adequacy of Mitigation