Subsequent Review

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“Birds of a feather flock together.”  — Proverb

The Fourth District Court of Appeal (Div. 2) affirmed a judgment entered after the sustaining of a demurrer without leave, holding that a mandate action brought by The Inland Oversight Committee (IOC), CREED-21, and Highland Hills Homeowners Association (HOA) alleging CEQA and Water Code violations was barred by res judicata (based on the final judgment in the HOA’s prior related CEQA action), and failure to state a claim.  The Inland Oversight Committee v. City of San Ramon (First American Title Insurance Company) (2018) ___ Cal.App.5th ___.  (The Court’s opinion, filed September 14 and later ordered published on September 27, 2018, denied the parties’ motions to dismiss and strike and related requests for judicial notice as moot in light of its disposition on the merits.)

Continue Reading Fourth District Holds CEQA Challenge To Ministerial Approval Of Development Project Modifications Barred By Res Judicata, Water Supply Assessment Not Required

In an opinion filed August 10, and later ordered published on September 7, 2018, the Fourth District Court of Appeal (Div. 2) affirmed a judgment denying Friends of Riverside’s Hills’ (FRH) writ petition challenging a residential development permit and related Negative Declaration issued by the City of Riverside (City) for a six-home, 11-acre subdivision in an environmentally sensitive area.  Friends of Riverside’s Hills v. City of Riverside (Carlton R. Lofgren, as Trustee, etc., et al., Real Parties in Interest) (2018) 26 Cal.App.5th 1137.

Continue Reading Arguing Impacts By Proxy: Fourth District Holds CEQA Does Not Require EIR Absent Evidence That Subdivision Approval Actually Violated Applicable Land Use Regulations Adopted to Mitigate Environmental Impacts

In a lengthy published opinion filed August 23, 2018, the Second District Court of Appeal reversed the trial court’s judgment, and upheld the City of Los Angeles’ addendum to a prior project-level EIR for a Target Superstore as legally sufficient CEQA compliance for a revised plan-level  project which amended a specific plan so as to authorize that same development.  Citizens Coalition Los Angeles v. City of Los Angeles (Target Corporation, Real Party in Interest) (2018) 26 Cal.App.5th 561.  The Court further held the specific plan amendment was not impermissible “spot zoning,” even if approved only to authorize the site-specific Superstore project, because there was a “reasonable basis” for the City to find it was in the public interest.  While these holdings are not surprising, some of the analysis used to reach the Court’s clearly correct CEQA holding – which analogizes subsequent review rules to piecemealing concepts – is novel and potentially confusing, as discussed below.

Continue Reading Second District Applies CEQA’s “Subsequent Review” Rules to Uphold EIR Addendum for Revised Target Superstore Project Including “Spot-Zoning” Specific Plan Amendment Authorizing Use

In a lengthy published opinion filed on August 22, 2018, the First District Court of Appeal (Div. 4) affirmed the trial court’s judgment rejecting various CEQA challenges to the City of San Francisco’s (“City”) Program EIR analyzing the environmental impacts of its 2009 General Plan Housing Element, which it adopted on June 29, 2011.  San Franciscans for Livable Neighborhoods v. City and County of San Francisco (2018) 26 Cal.App.5th 596.  San Franciscans for Livable Neighborhoods (“SFLN”), an unincorporated association comprised of more than a dozen neighborhood organizations, had challenged the EIR – mostly unsuccessfully – in the trial court.  It then appealed from adverse portions of the judgment concerning the EIR’s baseline and impact analyses for traffic, water supply, land use, and visual resources impacts; the City’s decision not to recirculate the EIR; the EIR’s alternatives analysis; and the feasibility of certain proposed mitigation measures.

Continue Reading “Growing Pains”: First District Holds Program EIR for San Francisco’s General Plan Housing Element Amendment Complies with CEQA

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.

Continue Reading 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

When it comes to CEQA cases, some courts don’t seem to know when to stop beating a dead horse.  So it may be with the Fourth District Court of Appeal’s 43-page, published, 2-1 majority decision, accompanied by a 4-page dissent, filed on November 16, 2017, after remand from the California Supreme Court in Cleveland National Forest Foundation, et al. v. San Diego Association of Governments, et al. (4th Dist., Div. 1, 2017) 17 Cal.App.5th 413.  My previous blog post on the Supreme Court’s disappointingly narrow opinion, which decided only the issue whether SANDAG’s 2011 EIR for its Regional Transportation Plan/Sustainable Community Strategy (RTP/SCS) violated CEQA by not explicitly engaging in an analysis of consistency of projected 2050 GHG emissions with a 2005 executive order (holding it didn’t), can be found here.

The Court of Appeal’s previous published decision, of course, reached that narrow GHG analysis issue and a lot more – it held SANDAG’s EIR was deficient in literally all respects argued by plaintiffs and intervenor/appellant the People, i.e., failure to analyze consistency with the 2005 Executive Order; failure to adequately address GHG mitigation; failure to analyze a reasonable range of project alternatives; failure to adequately analyze and mitigate air quality and particulate matter pollution impacts; and understating agricultural land impacts.  In supplemental briefing following the Supreme Court’s remand, Cleveland and the People requested the Court to issue a revised published opinion essentially the same as Cleveland I, albeit slightly revised to acknowledge the Supreme Court’s partial reversal.

Continue Reading SANDAG RTP/SCS EIR Redux: Is Fourth District’s Published Opinion on Remand Constructive CEQA Compliance Lesson or Moot Exercise?

In a published opinion filed September 28, 2017, the First District Court of Appeal affirmed the Alameda County Superior Court’s judgment denying appellant Living Rivers Council’s (LRC) writ petition challenging the State Water Resources Control Board’s (the “SWRCB” or “Board”) approval of a policy designed to maintain instream flows in coastal streams north of San Francisco.  Living Rivers Council v. State Water Resources Control Board (1st Dist., Div. 5, 2017) 15 Cal.App.5th 991.  The Court of Appeal upheld the SWRCB’s Revised Substitute Environmental Document (RSED) against LRC’s CEQA challenges, which related to the RSED’s analysis of potential indirect environmental effects of surface water users switching to groundwater pumping as a result of the policy.

As relevant legal background, the SWRCB administers the State’s water resources and has permitting authority over diversions from surface waters and subterraneous streams that flow through known and definite channels, but it lacks permitting authority over percolating groundwater.  It has authority to prevent unreasonable or wasteful water use regardless of source.  Legislation enacted in 2004 (Wat. Code, § 1259.4) requires the SWRCB to adopt principles and guidelines for maintaining instream flows of Northern California coastal streams.

Continue Reading First District Rejects CEQA Challenges to SWRCB’s Revised Environmental Document and Approval of Northern California Coastal Stream Policy

When all was said and done, it was a case of “same wine, different bottle” for Defendant and Appellant San Mateo Community College District (“District”) after the First District Court of Appeal’s published May 5, 2017 decision, following remand from the California Supreme Court, in Friends of the College of San Mateo Gardens v. San Mateo Community College District, et al. (1st Dist., Div. 1, 2017) 11 Cal.App.5th 596.  While the District’s project changes to demolish its San Mateo College Building 20 complex, which was formerly slated for renovation, were held not to result in an “entirely new” project for CEQA review purposes because the original MND retained informational relevance, the District’s Addendum to that MND was again held by the Court of Appeal to constitute an inadequate environmental review document for the modified project under CEQA “because there is substantial evidence to support a fair argument that the project changes might have a significant effect on the environment.”

As this is my seventh blog post on this important litigation, I won’t reiterate the case’s facts.  My post on the Supreme Court’s opinion ((2016) 1 Cal.5th 937) can be found here.  The facts and other relevant information concerning the case can be found in my posts dated July 8, May 12, May 4 and April 26, 2016, and March 25, 2014.

Continue Reading No Surprises Here: First District Applies CEQA Subsequent Review Standards Mandated by Supreme Court on Remand, Again Affirms Judgment for Petitioner in Friends of the College of San Mateo Gardens Litigation

On January 17, 2017, the California Supreme Court denied the losing appellants’ petition for writ of supersedeas, stay request, and petition for review of the First District Court of Appeal’s decision in Mission Bay Alliance v. Office of Community Investment and Infrastructure, et al. (GSW Arena LLC, et al., Real Parties in Interest) (2016) 6 Cal.App.5th 160; Supreme Court Case No. S239371.  This action effectively ends the CEQA challenge to the Golden State Warriors San Francisco Arena project brought by a coalition of its opponents and removes the major legal hurdle to its construction.  Consistent with the required “fast track” CEQA review of and litigation over this Governor-certified “environmental leadership development project,” the high court’s action came relatively quickly – just a month and a half after the filing of the Court of Appeal’s decision.  My detailed post on the Court of Appeal’s published decision in the case, which now stands undisturbed as legal precedent, can be found here.

Continue Reading California Supreme Court Denies Review in Expedited CEQA Litigation over Golden State Warriors Arena Project Approval

In an opinion filed November 29, and belatedly ordered published on December 22, 2016, the First District Court of Appeal affirmed the trial court’s denial of a writ petition challenging on CEQA grounds the San Francisco Municipal Transportation Agency’s (Muni) approval of a light rail construction contract.  The Committee For Re-evaluation of the T-Line Loop, et al v. San Francisco Municipal Transportation Agency, et al (Mitchell Engineering, Real Party in Interest) (1st Dist., Div. 2, 2016) 6 Cal.App.5th 1237.  The contract was to install the final 900 feet of light rail line needed to complete a partially constructed “Loop” around a City block in the Dogpatch neighborhood, so that trains on the T-Third light rail line will be able to turn around and lay over to meet service needs for special events and peak travel periods.  In approving the contract, Muni relied on the 1998 EIS/EIR (FEIR) certified for the two-phase Third Street Light Rail Project to connect southeastern San Francisco by light rail to the rest of the City; it also relied on SF Planning Department statements in 2012 and 2014 that the FEIR analyzed the Loop and that no further CEQA analysis was needed because there had been no substantial changes in the project or the area.

Continue Reading Completing the Loop Without Reinventing the Wheel: First District Holds 1998 EIR Adequate Without Further CEQA Review to Analyze Impacts of SF Muni’s Delayed Completion of Dogpatch Area Light Rail Line Loop