In late September, Governor Newsom signed Executive Order N-80-20 (“EO 80-20”), which, among other things, extends the protections of a handful of previously issued executive orders related to COVID-19. As relevant to CEQA practitioners, EO 80-20 extends the previous suspension of CEQA’s requirements for filing of specified notices with the county clerk and the posting of such notices in the county clerk’s office.
Continue Reading Governor Extends Conditional Suspension of Requirements Related to Posting CEQA Notices with County Clerks
Statute of Limitations
Update on COVID Pandemic’s Impact on CEQA/Land Use Litigation Statutes of Limitations: California Judicial Council Modifies Emergency Rule 9 To Provide “Hard Stop” Date of August 3, 2020 for Tolling
By Arthur F. Coon on
On May 29, 2020, the California Judicial Council adopted amendments to its controversial Emergency Rule 9 to provide fixed dates for the tolling of civil statutes of limitations, thereby replacing the indeterminate tolling previously provided for by the rule. While the amended Emergency Rule 9 provides welcome certainty, many believe it goes too far in extending CEQA and other short statutes of limitations in the land use litigation context – most of which are short by legislative design, and range from 30 to 90 days – by a period of 119 days (from April 6 through August 3, 2020).
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Continue Reading Update on COVID Pandemic’s Impact on CEQA/Land Use Litigation Statutes of Limitations: California Judicial Council Modifies Emergency Rule 9 To Provide “Hard Stop” Date of August 3, 2020 for Tolling
Second District Reaffirms Rule That Filing of Facially Valid NOD Triggers Short CEQA Statute of Limitations And Plaintiff May Not “Go Behind” Agency’s Declarations In Document To Challenge Validity of Project Approval
On April 2, 2020, the Second Appellate District Court of Appeal (Division 5) filed its published opinion in Coalition for an Equitable Westlake/MacArthur Park v. City of Los Angeles et al. (Adrian Jayasinha et al., Real Parties in Interest) (2020) 47 Cal.App.5th 368, which affirmed a judgment dismissing a CEQA action challenging the City’s project approvals and Mitigated Negative Declaration (MND) for a mixed-use development project. The judgment of dismissal was entered after the trial court sustained without leave the City’s and Real Parties’ demurrers on statute of limitations grounds. In affirming, the Court reaffirmed and followed Supreme Court precedent “ma[king] clear that the filing of a facially valid notice [of determination or notice of exemption] starts the running of the statute of limitations, even where the underlying CEQA determinations may be flawed.” (Citing Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 43 [NODs]; Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 505 [NOEs].)
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Continue Reading Second District Reaffirms Rule That Filing of Facially Valid NOD Triggers Short CEQA Statute of Limitations And Plaintiff May Not “Go Behind” Agency’s Declarations In Document To Challenge Validity of Project Approval
Once More Into the “Brambled Thicket”: Fourth District Reverses Ruling Sustaining Demurrer to Action Challenging Caltrans’ Claim of Statutory CEQA Exemption For Freeway Interchange Project, Holds Streets and Highways Code § 103’s Coastal Commission Exemption Does Not Apply And That Petition Adequately Pleaded Estoppel Against Caltrans to Assert 35-Day Statute of Limitations Based on NOE Filing
In a published opinion filed March 24, 2020, the Fourth District Court of Appeal (Division One) reversed a judgment of dismissal with prejudice, entered by the San Diego County Superior Court after sustaining a demurrer without leave on statute of limitations grounds to a group’s action challenging the CEQA review for Caltrans’ Interstate 5 (I-5)/State Route 56 (SR 56) freeway interchange project (the “Project”). Citizens for a Responsible Caltrans Decision v. Department of Transportation (2020) 46 Cal.App.5th 1103. The opinion (1) interprets, as a matter of first impression, the scope and operation of the statutory CEQA exemption in Streets and Highways Code § 103 (“Section 103”), and (2) holds that Caltrans’ repeated misrepresentations and misleading conduct during and concerning the Project’s CEQA and approval process precluded the trial court from finding as a matter of law that Caltrans was not estopped to assert the ban of the 35-day statute of limitations based on its filing of a Notice of Exemption (NOE) with the State Clearinghouse (SCH).
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Continue Reading Once More Into the “Brambled Thicket”: Fourth District Reverses Ruling Sustaining Demurrer to Action Challenging Caltrans’ Claim of Statutory CEQA Exemption For Freeway Interchange Project, Holds Streets and Highways Code § 103’s Coastal Commission Exemption Does Not Apply And That Petition Adequately Pleaded Estoppel Against Caltrans to Assert 35-Day Statute of Limitations Based on NOE Filing
Second District Affirms Judgment Invalidating City of Agoura Hills’ Mixed-Use Project Approvals and Related MND Based On CEQA and Local Oak Tree Ordinance Violations
By Arthur F. Coon on
Posted in Administrative Record, Aesthetic Impacts, Affordable Housing, Alternatives, Exhaustion, Fees and Costs, Historic and Cultural Resources, Land Use, Litigation, Mitigation, Negative Declaration / Mitigated Negative Declaration, Standard of Review, Standing, Statute of Limitations, Water Supply
In a 74-page opinion filed February 24, and later ordered published on March 17, 2020, the Second District Court of Appeal (Division 7) affirmed judgments (granting the writ petition and awarding fees) in coordinated appeals stemming from a CEQA action successfully challenging the City of Agoura Hills’ (City) project approvals and mitigated negative declaration (MND) for a mixed use development project on an undeveloped 8.2 acre parcel. Save the Agoura Cornell Knoll v. City of Agoura Hills (Doron Gelfand, et al., Real Parties in Interest) (2020) 46 Cal.App.5th 665. The Court rejected the City’s and Real Parties’ procedural arguments that Petitioners and Respondents Save the Agoura Cornell Knoll (STACK) and California Native Plant Society (CNPS) had failed to exhaust administrative remedies, and that their claims were barred by lack of standing and the statute of limitations; on the merits of the CEQA claim, it held that substantial evidence in the record supported a fair argument that even as mitigated the project may have significant impacts on cultural resources (i.e., a Chumash Native American archaeological site), three sensitive plant species, native oak trees, and aesthetic resources, and that an EIR was therefore required; and it further held the trial court properly granted writ relief based on the City’s violation of its own Oak Tree Ordinance by approving a project that would concededly remove 35 to 36 percent of the site’s oak tree canopy when the Ordinance prohibited removal of more than 10 percent. Finally, the Court held that the trial court properly awarded Petitioners STACK and CNPS $142,148 in attorneys’ fees under Code of Civil Procedure § 1021.5, made payable 50% by City and 50% by Real Parties, notwithstanding that Petitioners furnished their first amended petition to the Attorney General (AG) beyond the 10-day statutory period for doing so.
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Continue Reading Second District Affirms Judgment Invalidating City of Agoura Hills’ Mixed-Use Project Approvals and Related MND Based On CEQA and Local Oak Tree Ordinance Violations
Fourth District Rejects Coastal Act/CEQA-Based Challenges To Commission’s Certification of San Diego Port Plan Amendment As Time-Barred For Failure To Join Indispensable Parties Within Limitations Period
In a 68-page published opinion filed September 27, 2019, the Fourth District Court of Appeal (Div. One) affirmed the trial court’s judgment rejecting a plaintiff group’s numerous challenges to the California Coastal Commission’s (CCC) certification of a port master plan amendment by the San Diego Unified Port District (Port). The amendment allows expansion of the San Diego Convention Center by the City of San Diego (City) and of the adjacent Hilton San Diego Bayfront hotel by One Park Boulevard, LLC (One Park). San Diego Navy Broadway Complex Coalition v. California Coastal Commission, et al. (City of San Diego, et al., Interveners and Appellants) (2019) 40 Cal.App.5th 563. While the trial court had rejected the statute of limitations defense of indispensable parties/interveners City and One Park and ruled against plaintiff’s Coastal Act and CEQA-based challenges to the CCC’s findings on the merits, the Court of Appeal disagreed with the statute of limitations ruling, and based its affirmance on the primary ground that the claims were time-barred by the Coastal Act’s applicable 60-day statute of limitations because interveners were not timely joined within that limitations period. It also held plaintiff’s claims lacked substantive merit in any event.
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Continue Reading Fourth District Rejects Coastal Act/CEQA-Based Challenges To Commission’s Certification of San Diego Port Plan Amendment As Time-Barred For Failure To Join Indispensable Parties Within Limitations Period
Supreme Court Schedules Argument In CEQA Project Definition Case
By Arthur F. Coon on
On May 15, 2019, the California Supreme Court announced it would hear oral argument in Union of Medical Marijuana Patients v. City of San Diego (California Coastal Commission), Case No. S238563, on June 4, 2019, at 2:00 p.m. in its Los Angeles courtroom. This is a long-awaited development as review was unanimously granted in this case on January 11, 2017, and the case was fully briefed by the parties in October 2017. My prior blog post on the case, which presents the important legal issue whether an amendment to a zoning ordinance is, categorically, a “project” under CEQA (see Pub. Resources Code, §§ 21065, 21080(a)), can be found here.
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Continue Reading Supreme Court Schedules Argument In CEQA Project Definition Case
Spring CEQA Notes – May 2019
By Arthur F. Coon on
Save Lafayette Trees Litigation Update: The Beat Goes On
We last posted on this decision (currently published as Save Lafayette Trees v. City of Lafayette (Pacific Gas and Electric Company, Real Party in Interest) (1st Dist. 2019) 32 Cal.App.5th 148) and its significant CEQA/Planning and Zoning Law statute of limitations holdings in my February 26, 2019 post, which can be found here. In that post, it was noted (among other things) that the Court’s opinion after rehearing was issued on February 8, 2019, following the January 29, 2019 bankruptcy filing of real party PG&E, but that it did not address the effect (if any) of the automatic stay.…
CEQA Roundup – February 2019
Just a few updates/items of possible interest as we head toward the end of this short (but very cold and wet) month:
Regulatory Developments
The close of OPR’s public comment period on its Discussion Draft of the CEQA Climate Change Advisory is March 15, 2019, at 5:00 p.m.
OPR also released in late December 2018 its Technical Advisory on Evaluating Transportation Impacts Under CEQA, containing its technical recommendations on VMT assessment, thresholds of significance, and mitigation measures, as well as incorporating Guidelines changes and more recent feedback since release of the April 2018 technical advisory. Details on these and related developments can be found in OPR’s February 21, 2019 email and on its website.…
2018 CEQA Fall Update: Recent Legislative, Judicial, And Other Developments
By Arthur F. Coon on
A few recent developments and upcoming events in the CEQA world bear quick mention:
- The BART Housing Bill:
Under AB 2923, BART now has limited land use regulation authority on its own lands near its stations. BART is required to adopt Transit-Oriented Development (TOD) standards for its lands by July 1, 2020, and its action in this regard is subject to CEQA review, with BART acting as the lead agency. The new law declares the minimum TOD standards for this purpose (setting minimum density and height limits, and maximum parking limits) are set forth in BART’s 2017 TOD Guidelines. Development projects which meet TOD zoning requirements and provide 30% affordable housing will qualify for streamlined, “by-right,” ministerial approval with no additional CEQA review. The law also requires cities and counties to adopt zoning standards for BART-owned lands, conforming to BART’s adoption of TOD standards for height, density, parking, and FAR for eligible TOD projects, within 2 years of BART’s action, or by July 1, 2022 if BART fails to act. The new law is intended to increase California’s housing supply and provide some relief from its housing crisis, and could enable BART to develop up to 20,000 residential units and 4.5 million square feet of office/commercial uses on 250 acres of BART-owned lands by 2040. My partner Bryan Wenter’s excellent post on this new law can be found here.…
Continue Reading 2018 CEQA Fall Update: Recent Legislative, Judicial, And Other Developments