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

In an opinion filed December 7, and later ordered published on December 16, 2016, the Fourth District Court of Appeal affirmed a judgment denying a writ petition on the “single legal issue” whether plaintiffs were entitled under Public Resources Code § 21151(c) (and a municipal code section with essentially the same content) to an appeal of a planning commission’s “substantial conformance review” (SCR) determination to the city council.  (San Diegans for Open Government et al v. City of San Diego (Sunroad Enterprises et al, Real Parties in Interest) (4th Dist., Div. 1, 2016 ) 6 Cal.App.5th 995.)  The SCR decision found that changes in an already CEQA-reviewed and approved mixed-use development project were consistent with previous CEQA documents and did not require a new environmental document.  Because such a determination was not one of the decisions expressly listed in Section 21151(c) as appealable of right to the lead agency’s elected decision making body, and there was no independent right to such an appeal order the City’s municipal code, the City properly refused to process plaintiffs’ attempted administrative appeal of the planning commission’s decision.

Continue Reading CEQA Does Not Require Local Lead Agency To Provide For Administrative Appeal To Elected Body of Nonelected Body’s Decision That Project Changes Require No Subsequent Review

In a lengthy published opinion filed November 29, 2016, the First District Court of Appeal rejected all legal challenges to the City of San Francisco’s Final Supplemental Environmental Impact Report (FSEIR) and related land use approvals for a 488,000-square-foot multipurpose event center project on 11 acres in the City’s Mission Bay South redevelopment plan area (the “Project”).  Mission Bay Alliance, et al. v. Office of Community Investment and Infrastructure, et al. (GSW Arena LLC, et al., Real Parties in Interest) (2016 1st Dist., Div. 3) 6 Cal.App.5th 160, 2016 WL 6962504.  The event center would host home games of the Golden State Warriors NBA basketball team, concerts, conferences, conventions and other sporting and cultural events, and the overall Project would also include “a variety of mixed-use structures, including two 11-story office and retail buildings, parking facilities, and 3.2 acres of open space.”

Continue Reading Slam Dunked! First District Rejects All CEQA And Land Use Challenges To Golden State Warriors Event Center Project And EIR In Expedited Litigation

On November 22, 2016, the California Supreme Court issued a significant Order granting review in Coastal Hills Rural Preservation v. County of Sonoma (2016) 2 Cal.App.5th 1234, and also transferring the matter back to the Court of Appeal (First Appellate District, Div. 1) for reconsideration in light of Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2016) 1 Cal.5th 937, 957-959, fn. 6, and CEQA Guidelines § 15384.  The high court further ordered the First District’s opinion to be depublished, and it is therefore no longer citable as binding legal precedent.  Both orders were unanimous.

Continue Reading Wither Subsequent Review? Supreme Court Again Weighs In On CEQA Subsequent Review Standards Following Negative Declarations – Grants, Retransfers, and Depublishes First District’s Coastal Hills Rural Preservation Decision

“… like all things in life, project plans are subject to change.”
(Slip Opn. of Kruger, J., p. 4.)

The California Supreme Court provided needed clarification to some aspects of the operation of CEQA’s “subsequent review” rules (Pub. Resources Code, § 21166; CEQA Guidelines, § 15162) in its highly anticipated opinion, filed on September 19, 2016, in Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2016) 1 Cal.5th 937.   CEQA’s subsequent review rules embody CEQA’s concerns for finality and efficiency, and implement a presumption against requiring a subsequent EIR for a modified project that has previously undergone CEQA review – i.e., they  govern whether an EIR will be required, or another type of CEQA document (or no further documentation) will suffice, when changes are proposed in a project for which an initial CEQA review has been completed.  (Slip Opn., p. 12.)  I won’t reiterate this case’s facts and relevant background history (including oral argument and post-argument briefing in the Supreme Court) which can be found (in reverse chronological order) in my prior blog posts of July 8, May 12, May 4, April 26, 2016, and March 25, 2014.  This post focuses on the legal rules and standards announced by the Court and their potentially significant implications for lead agencies and project proponents who consider approval of changes to a development project that has already undergone and survived a full CEQA review.

Continue Reading Supreme Court Addresses CEQA Subsequent Review Rules in San Mateo Gardens Case

The First District Court of Appeal has issued another published decision applying the “substantial evidence” standard of review to a local agency’s decision not to prepare an EIR for approval of revisions to a project for which a Mitigated Negative Declaration was initially prepared. Coastal Hills Rural Preservation v. County of Sonoma (Jack Petranker, et al., Real Parties In Interest) (1st Dist., Div. One, 8/31/16) ___Cal.App.5th___, 2016 WL 4538384. The project at issue was “the third in a series of master use permits (MUPs) for … the Tibeten Nyingma Meditation Center[’s] (TNMC)” Buddhist retreat center (Ratna Ling) located on a 120-acre property, designated as Resources and Rural Development (RRD) in County’s general plan, in a rural area of western Sonoma County. A citizens group opposed to retreat expansion, Coastal Hills Rural Preservation (CHRP), sued under CEQA claiming an EIR was required because the project greatly expanded an existing “industrial” printing press operation on the property (used by retreatants to print sacred Buddhist texts for free distribution in Asia to Buddhists whose libraries have been destroyed by Chinese authorities). The most recent MUP application sought to:  authorize as permanent four (4) previously temporary steel-frame, fire-retardant membrane storage tents totaling approximately 40,000 square feet (equipped with automatic sprinklers and used to store the texts); add to the property’s extensive existing facilities a six-bedroom residence and eight tent cabins for volunteers; and increase the retreat’s total occupancy limit to 98 persons with 24 additional persons allowed on a seasonal basis (apparently fluctuating with the intensity of the volunteer printing activities).

Continue Reading First District Applies CEQA’s “Subsequent Review” Rules, Substantial Evidence Standard of Review; Upholds Subsequent Mitigated Negative Declaration and Modified Master Use Permit for Remote Buddhist Retreat

In a short but significant published opinion filed July 19, 2016, the First District Court of Appeal affirmed the San Francisco County Superior Court’s judgment of dismissal following the sustaining of demurrers (without leave to amend) to a CEQA action as time-barred.  Communities for a Better Environment, et al. v. Bay Area Air Quality Management District (Kinder Morgan Material Services, LLC, et al., Real Parties In Interest) (1st Dist., Div. 1, 2016) 1 Cal.App.5th 715, Case No. A14364.  The Court of Appeal held there was no reasonable possibility that plaintiffs (CBE) could amend the mandamus petition to allege their CEQA action was timely filed by virtue of the discovery rule because that rule does not apply where one of the triggering events of CEQA’s statute of limitations has occurred.

Continue Reading Discovery Rule Does Not Postpone Accrual of CEQA Cause of Action; Events Specified In CEQA Statute of Limitations Provide Constructive Notice of Project Approval or Commencement