Subsequent Review

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In a published opinion filed May 18, 2020, the Sixth District Court of Appeal affirmed the trial court’s denial of a historic preservation group’s writ petition that challenged the City of San Jose’s (City) entry into a Streambed Alteration Agreement (SAA) with the California Department of Fish and Wildlife (CDFW), which agreement was needed to implement the City’s pedestrian bridge project involving demolition of the historic Willow Glen Railroad Trestle.  Willow Glen Trestle Conservancy v. City of San Jose (6th Dist. 2020) 49 Cal.App.5th 127.
Continue Reading Sixth District Holds City Of San Jose’s Action In Seeking And Accepting Streambed Alteration Agreement From California Department Of Fish And Wildlife Is Not New Discretionary Approval For City’s Historic Trestle Demolition/Bridge Construction Project, And Thus Does Not Trigger Subsequent CEQA Review

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].)
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

In a 38-page opinion filed on May 16, and belatedly ordered published on June 14, 2019, the Third District Court of Appeal affirmed the trial court’s judgment rejecting all of plaintiff/appellant Center for Biological Diversity’s (“CBD”) CEQA and statutory challenges to the EIR that the California Department of Conservation, Division of Oil, Gas and Geothermal Resources (“DOGGR”) was required by S.B. 4 (Stats. 2013, ch. 13, § 2) to prepare “pursuant to [CEQA], to provide the public with detailed information regarding any potential environmental impacts of well stimulation in the state.”  (Pub. Resources Code, § 3161(b)(3)(A).)  The Court’s opinion addresses and disposes of CBD’s CEQA and other challenges in a highly unusual, and even unprecedented, context – that of a statutorily required program EIR addressing the statewide impacts of oil and gas well-stimulation treatments (including the controversial treatment known as hydraulic fracturing or “fracking”) prepared in the absence of any “project” being approved or undertaken by the ostensible “lead agency” (DOGGR).  Center for Biological Diversity v. California Department of Conservation, Division of Oil, Gas and Geothermal Resources, et al. (3d Dist. 2019) 36 Cal.App.5th 210.
Continue Reading The Curious Case of the EIR Without A “Project”: Third District Rejects CEQA, Statutory Challenges To DOGGR’s “Unique” S.B. 4-Mandated EIR Analyzing Statewide Fracking/Well Stimulation Impacts

On November 20, 2018, in response to a petition for review filed by the Target Superstore project’s opponent, plaintiff (and respondent on appeal) Citizens Coalition Los Angeles, the California Supreme Court denied review and ordered the Court of Appeal’s opinion depublished.  My September 7, 2018 blog post analyzing and critiquing the Court of Appeal’s decision, which was previously published at Citizens Coalition Los Angeles v. City of Los Angeles (2018) 26 Cal.App.5th 561, can be found here.
Continue Reading Supreme Court Denies Review And Depublishes CEQA Subsequent Review/“Spot-Zoning” Case Involving Partially Built Los Angeles Target Superstore Project

The Fourth District Court of Appeal (Div. 1) held in a published opinion filed October 24, 2018, that CEQA Guidelines § 15164 validly establishes an addendum process that is consistent with the CEQA statute, implementing and filling gaps in Public Resources Code § 21166.  The Court also held that new findings under Public Resources Code § 21081 addressing a project’s significant impacts are not required when a lead agency approves an addendum to an EIR.  Save Our Heritage Organisation v. City of San Diego (The Plaza de Panama Committee, Real Party in Interest) (2018) 28 Cal.App.5th 656.
Continue Reading Fourth District Holds Addendum Process Authorized By CEQA, No New Findings Required

“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 Bernardino (First American Title Insurance Company) (2018) 27 Cal.App.5th 771.  (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