In an opinion filed April 27, and certified for partial publication on May 19, 2023, the First District Court of Appeal (Div. 1) vacated the trial court’s order granting a writ directing the University of California’s Regents (Regents) to decertify a 2018 Supplemental EIR (2018 SEIR) for a campus development project and to suspend increases in student enrollment pending CEQA compliance; it further directed the trial court to dismiss the petition, which it held was largely mooted by the Regents’ certification of a 2021 EIR and the passage of CEQA amendments via SB 118, events that combined to preclude the Court’s ability to grant effective relief. Save Berkeley’s Neighborhoods v. The Regents of the University of California, et al. (2023) ___ Cal.App.5th ___.
Subsequent Review
Sixth District Holds Downtown San Jose Office Project FSEIR’s Brief Discussion And Rejection of “Compensatory” Mitigation for Historic Buildings Razed By Project Was Informationally Adequate Under CEQA Based On City’s Unchallenged Factual Finding That No Similar Historic Buildings Existed Elsewhere In City’s Downtown
In an opinion filed April 18, and belatedly ordered published on May 10, 2023, the Sixth District Court of Appeal upheld the City of San Jose’s (City) certification of a final Supplemental EIR (FSEIR) for development of three high-rise office towers (the “Project”) on an eight-acre downtown site containing several historic structures which the Project required to be demolished. Preservation Action Council of San Jose v. City of San Jose (SJ Cityview, LLC, Real Party in Interest) (2023) ___ Cal.App.5th ___. In affirming the trial court’s judgment denying Preservation Action Council of San Jose’s (Appellant) petition for writ of mandate, the Court rejected Appellant’s arguments that the FSEIR failed to adequately analyze and provide compensatory mitigation for the historic buildings and failed to adequately respond to comments on those issues.…
Fourth District Holds Addendum To 2010 Program EIR For Irvine Business Complex Vision Plan Violated CEQA Because Conclusion That Large Infill Project’s GHG Emissions Would Be Less Than Significant Lacked Substantial Evidence And Project Was Not Exempt
In a published opinion filed February 6, 2023, the Fourth District Court of Appeal (Div. 3) affirmed a judgment setting aside an addendum to a 2010 program EIR (PEIR) and accompanying approvals for a 275,000-square foot office complex on a 4.95-acre parcel (the “Gemdale project” or “project”) within the 2,800-acre Irvine Business Complex (IBC). IBC Business Owners for Sensible Development v. City of Irvine (Gemdale 2400 Barranca Holdings, LLC, Real Party in Interest) (2023) 88 Cal.App.5th 100. The Court held that the City’s approval of the Addendum was improper because substantial evidence did not support the conclusion that the project’s GHG emissions were within the scope of the PEIR and would have less than significant impacts; further, the project was unusually large and dense due to its utilization of transfers of development rights (TDRs) of over 220,000 square feet – by far the largest ever approved in the IBC’s history – and thus could not qualify for the Class 32 infill exemption due to the unusual circumstances exception.…
Supreme Court Denies Review And Depublishes Troublesome Brown Act/CEQA Exemption Decision
On February 15, 2023, the California Supreme Court denied the petitions for review and issued an order decertifying the Second District Court of Appeal’s controversial (and previously published) opinion in G.I. Industries v. City of Thousand Oaks (2022) 84 Cal.App.5th 814, rev. den. and depub’d. 2/15/23 (Supreme Ct. Case No. S277439). (My prior posts on this decision and its subsequent procedural history can be accessed by clicking on their following dates: 10/31/22; 12/5/22; and 1/30/23.) …
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 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.…
Third District Addresses Significant CEQA Issues In Mixed Decision On Placer County’s EIR For Specific Plan/Rezoning Allowing Development of Martis Valley Timberlands
In a sprawling, 123-page published opinion filed on February 14, 2022, the Third District Court of Appeal affirmed in part, and reversed in part, judgments in consolidated CEQA actions challenging Placer County’s EIR for its approval of a specific plan and rezoning to permit residential and commercial development and preserve forest land in the Martis Valley near Truckee and Lake Tahoe. League to Save Lake Tahoe, Mountain Area Preservation, et al./California Clean Energy Committee v. County of Placer, et al. (Sierra Pacific Industries, et al., Real Parties in Interest) (2022) 75 Cal.App.5th 63. Consistent with its impressive length, the opinion decides a number of significant issues, and contains a thorough exposition of established CEQA rules and principles, including, but not limited to, those governing: applicable standards of review; baseline/environmental setting description; lead agency discretion regarding thresholds of significance, methodology for impact study, and significance determinations; cumulative impacts (including GHG) analysis; and requirements for adequate mitigation measures.
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Continue Reading Third District Addresses Significant CEQA Issues In Mixed Decision On Placer County’s EIR For Specific Plan/Rezoning Allowing Development of Martis Valley Timberlands
First District Affirms Judgment Upholding Statutory CEQA Exemption For Housing Project Consistent With EIR-Reviewed Specific Plan, Rejects Claims That Changes In Project Or Circumstances Required Subsequent EIR
In an opinion filed on December 29, 2021, and later ordered published on January 25, 2022, the First District Court of Appeal (Div. 4) affirmed a judgment upholding the City of Newark’s (City) use of Government Code § 65457’s CEQA exemption for a 469-lot residential subdivision on land adjacent to San Francisco Bay. Plaintiffs unsuccessfully challenged the City’s 2019 subdivision map approval based on the claim that a subsequent EIR was required due to changes in the project and circumstances allegedly showing it would have new significant impacts on the endangered salt marsh harvest mouse (“harvest mouse”) and its wetlands habitat. Citizens’ Committee to Complete the Refuge, et al. v. City of Newark et al., (SI XVII, LLC, et al, Real Parties in Interest) (2021) 74 Cal.App.5th 460.
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Continue Reading First District Affirms Judgment Upholding Statutory CEQA Exemption For Housing Project Consistent With EIR-Reviewed Specific Plan, Rejects Claims That Changes In Project Or Circumstances Required Subsequent EIR
A Decade of CEQA Developments
On September 13, 2011, I began the endeavor of writing Miller Starr Regalia’s CEQA Developments blog. Ten years and 358 blog posts later, it continues to be a challenging and rewarding task. Since my inaugural post (which can be viewed here) was a “top ten” list of CEQA litigation mistakes to avoid, I thought an appropriate tenth anniversary post might be a list of the ten most significant CEQA case law developments over the past decade. My “top ten” list is definitely subjective, is limited to Supreme Court decisions, and (by its very nature) fails to include many important judicial developments. Nonetheless, here it is (with the decisions listed in no particular order):
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Continue Reading A Decade of CEQA Developments
Third District Affirms Judgment Upholding State Lands Commission’s Supplemental EIR For Desalination Plant Lease Modification, Rejects CEQA Claims That Commission Piecemealed Review And Should Have Assumed Lead Agency Status And Prepared A Subsequent EIR
In a lengthy opinion filed April 8, and ordered published on May 7, 2021, the Third District Court of Appeal affirmed a judgment rejecting a number of CEQA challenges to the California State Land Commission’s (Lands Commission) supplemental EIR for and related approval of a lease modification to facilitate a desalination plant in Huntington Beach. California Coastkeeper Alliance v. State Lands Commission (Poseidon Resources (Surfside) LLC, Real Party in Interest) (2021) 64 Cal.App.5th 36. In holding that the Commission properly elected to prepare a supplemental (rather than subsequent) EIR, did not err in refusing to assume lead agency status, and did not unlawfully piecemeal environmental review, the Court provided guidance on a number of significant CEQA issues.
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Continue Reading Third District Affirms Judgment Upholding State Lands Commission’s Supplemental EIR For Desalination Plant Lease Modification, Rejects CEQA Claims That Commission Piecemealed Review And Should Have Assumed Lead Agency Status And Prepared A Subsequent EIR
Hitting A CEQA Snag: Third District Affirms Rejection of Statutory Road Abandonment And Brown Act Challenges And Inverse Condemnation Claim, But Holds Placer County Violated CEQA By Adopting Addendum To Wrong Project’s EIR
By Arthur F. Coon on
Posted in Baseline, Brown Act, Land Use, Litigation, Project Description, Standard of Review, Subsequent Review, Takings
In a published opinion filed on August 17, 2020, the Third District Court of Appeal mostly affirmed the trial court’s judgment upholding Placer County’s partial abandonment of public easement rights in an emergency access/public transit road connecting two Lake Tahoe-area residential subdivisions; the County took the action to resolve disputes that had arisen after one subdivision’s residents began using the road as an all-purpose public road and short-cut through the other subdivision to get to Northstar-at-Tahoe. Martis Camp Community Association v. County of Placer, et al. (Retreat at Northstar Association, et al., Real Parties in Interest) (2020) 53 Cal.App.5th 569. My partner Bryan Wenter’s post covers the land use issues at the heart of the case, and can be found here; readers should consult that post for the case’s factual background and primary holdings. This post covers the CEQA issue at the “tail end” of the opinion, which involved application of CEQA’s “subsequent review” rules to County’s partial road abandonment project.
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Continue Reading Hitting A CEQA Snag: Third District Affirms Rejection of Statutory Road Abandonment And Brown Act Challenges And Inverse Condemnation Claim, But Holds Placer County Violated CEQA By Adopting Addendum To Wrong Project’s EIR