As we move into a brand new year of tracking CEQA developments, it seems like an appropriate time to survey and briefly recap some of the many significant published case law developments that occurred over the past year. (For those with an interest in delving deeper into any of the cases mentioned below, hyperlinks to my relevant prior posts are provided at the end of the each brief case summary.)
On July 26, 2017, the California Supreme Court issued its order denying the losing appellants’ (Sierra Club and Center for Biological Diversity) request for depublication of the opinion in Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11, and also declined to review the case on its own motion, bringing the litigation to a final conclusion. The Court’s docket entry reflects that Justice Kruger was absent and did not participate in the matter.
My post analyzing the Court of Appeal’s opinion, which remains a published precedent as a result of the Supreme Court’s action, can be found here, and my post on the depublication request and related letter briefing can be found here.
On June 16, 2017 – without seeking either rehearing in the First District Court of Appeal or review by the Supreme Court – losing appellants Sierra Club and Center for Biological Diversity filed a letter asking the Supreme Court to depublish the First District’s (Division 1) recent opinion in Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11 (“Sierra Club”). The Supreme Court on the same day extended its otherwise soon-to-expire time to order review of the case on its own motion to August 21, 2017.
In a well-researched and well-reasoned opinion resulting from extensive briefing (including supplemental briefing) from all parties, Sierra Club affirmed the trial court’s denial of appellants’ writ petition challenging the Sonoma County Agricultural Commissioner’s issuance of a 54-acre vineyard development permit, as a ministerial approval without CEQA review, under the detailed standards and controls of the County’s vineyard development and erosion control (aka “VESCO”) ordinance. My blog post analyzing this significant case (in which I represent real party Ohlson Ranch) can be found here.
Land use litigators know that CEQA provides a potent weapon to challenge local government decisions affecting land use and development. It is often easy to plead a CEQA claim challenging such decisions, and CEQA will normally apply to them regardless of whether they are legislative (e.g., general plan, specific plan, zoning, and development agreement enactments and amendments) or quasi-adjudicatory (e.g., conditional use permit, subdivision map approvals) in nature. When an EIR has not been prepared to analyze the potential environmental effects of the local agency’s action, a CEQA plaintiff with standing who files suit within the law’s short limitations periods will also receive a very favorable standard of judicial review – the “fair argument” test – in the quest to invalidate the local land use action and require further environmental review.
The Los Angeles Times reported yesterday that California Supreme Court Justice Kathryn Werdegar, 81, and currently the Court’s longest-serving member, will retire this summer, on August 31, 2017. Justice Werdegar has served as an associate justice on the high court for 23 years, and was quoted as saying “it is time for someone else to have that privilege and opportunity.”
On January 11, 2017, the California Supreme Court by unanimous order granted review in yet another CEQA case, Union of Medical Marijuana Patients, Inc. v. City of San Diego (2016) 4 Cal.App.5th 103, Supreme Court Case No. S238563.
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
In a 29-page published opinion filed October 14, 2016, the Fourth District Court of Appeal dispensed some good news to municipalities desiring to reasonably regulate retail medical marijuana facilities within their jurisdictional boundaries. In Union of Medical Marijuana Patients, Inc. v. City of San Diego (4th Dist., Div. 1, 2016) 4 Cal.App.5th 103, Case No. D068185, the Court affirmed the trial court’s judgment denying a writ petition on the basis that the City of San Diego’s ordinance regulating the establishment and location of medical marijuana consumer cooperatives was not a “project” subject to CEQA.
Continue Reading Blowing Smoke About Impacts? Fourth District Rejects Speculative CEQA Challenge to San Diego’s Medical Marijuana Consumer Cooperative Ordinance, Holds Zoning Ordinances Are Not Necessarily CEQA “Projects”
The Federal Indian Gaming Regulatory Act (“IGRA”; 25 U.S.C. § 2701 et seq.) allows gaming on Indian lands acquired by the Secretary of the Interior (Secretary) in trust for a tribe’s benefit after October 17, 1988, if, among other things, the Secretary determines it would be in the tribe’s best interest and not detrimental to the surrounding community, and the governor of the state where the land is located concurs with the determination. (25 U.S.C., § 2719(b)(1)(A).) Further, casino-style gaming may be conducted if authorized by a tribal-state compact, and California Constitutional and statutory law designates the Governor as the state officer authorized to negotiate and execute such compacts. (Cal. Const., art. IV, § 19(f); Gov. Code, § 12012.5(d).)
It’s always nice not to lose a hard-won prevailing party cost award due to a court’s imprecise use of party designations – which can get confusing where there are multiple appeals at issue. On October 4, 2016, the Fifth Appellate District Court of Appeal issued a two-page Order entitled “Order Modifying Opinion and Denying Rehearing [Includes Change In Judgment]” in the recently decided consolidated appeals in the Citizens for Ceres v. City of Ceres litigation. The minor change made in the last sentence of the opinion’s disposition clarified that: (1) Respondents (City of Ceres and Real Party Wal-Mart Stores, Inc., et al.) were awarded costs as prevailing parties in the merits appeal, which affirmed the trial court’s judgment denying the writ petition challenging the EIR, statement of overriding considerations, and approval of Wal-Mart’s controversial Ceres project; and (2) Appellants (Wal-Mart, et al.) were awarded costs as prevailing parties in the separate costs appeal, which resulted in the published portion of the opinion reversing the trial court’s order taxing costs of $44,889.71 claimed by Wal-Mart for amounts it had to reimburse the City for administrative record preparation. My post on the Court’s partially published September 12, 2016 opinion in the case can be found here.