In a partially published opinion filed March 29, 2024, the First District Court of Appeal (Div. 4) rejected contentions that the pre-judgment completion of construction of a shooting range mooted a CEQA challenge to the project; it held an effective remedy in the form of various mitigation measures alleged in the CEQA petition remained available and reversed the trial court’s judgment entered in favor of respondents and real party after sustaining their demurrers and granting their motions to strike and for judgment on the pleadings.  In addition to applying established mootness principles, the Court resolved a number of other issues in holding petitioner Vichy Springs Resort, Inc. (“Vichy”) had sufficiently alleged a CEQA claim at the pleadings stage against both the City of Ukiah (“City”) and the County of Mendocino (“County”) in a unique factual and legal context presenting novel issues of land use regulatory authority and intergovernmental immunity.  Vichy Springs Resort, Inc. v. City of Ukiah, et al. (Ukiah Rifle and Pistol Club, Inc., Real Party in Interest) (2024) ___ Cal.App.5th ___.Continue Reading First District Holds CEQA Challenge To Shooting Range Project On City-Owned Land In Unincorporated County Was Not Mooted By Project’s Construction During Trial Court Proceedings Despite Petitioner’s Failure To Seek Preliminary Injunction

In a published opinion filed November 13, 2023, disposing of consolidated appeals, the Second District Court of Appeal (Div. 6) affirmed judgments denying writ petitions that sought to invalidate a Ventura County ordinance. The ordinance at issue created wildlife migration corridor overlay zones covering approximately 163,000 less-developed acres of the County, including 10,000 acres of classified mineral resources.  California Construction and Industrial Materials Association/Ventura County Coalition of Labor, Agriculture and Business v. County of Ventura (Los Padres Forestwatch, et al., Interveners and Respondents) (2023) 97 Cal.App.5th 1. As did the trial court, the Court of Appeal rejected the arguments of appellants – which were coalition groups representing construction, industry, labor, agriculture and business interests – that County’s adoption of the ordinance violated requirements of the Surface Mining and Reclamation Act of 1975 (“SMARA”) and CEQA.Continue Reading Second District Holds Ventura County’s Adoption of Ordinance Creating Wildlife Migration Corridor Overlay Zones In County’s Rural Areas Did Not Violate SMARA And Was Properly Determined Categorically Exempt From CEQA

“I fought the law and the law won” – The Crickets

In an opinion filed July 19, and later ordered published on August 16, 2023, the Second District Court of Appeal (Div. 6) reversed the trial court’s grant of a preliminary injunction in a CEQA action enjoining the Santa Barbara County Road Commissioner from enforcing public laws by removing unpermitted encroachments from a public right-of-way.  Christopher Anderson, et al. v. County of Santa Barbara, et al. (2023) 94 Cal.App.5th 554. The public officer’s law enforcement actions were held to be exempt from CEQA; to have independent utility apart from any alleged larger, “piecemealed” project evading CEQA review; and not to be subject to the “unusual circumstances” exception to applicable categorical exemptions.  While the Court was careful to fully analyze all of petitioners’ CEQA arguments, its opinion also offered numerous other reasons why the trial court erred and exceeded its lawful authority under applicable legal principles in issuing the preliminary injunction.Continue Reading Second District Reverses Preliminary Injunction, Holds CEQA Cannot Trump Santa Barbara County’s Authority To Remove Unpermitted Encroachments Placed In Public Right-Of-Way By Adjacent Landowners

In a published opinion filed August 14, 2023, the Third District Court of Appeal reversed a judgment that denied a petition for writ of mandate challenging the State Department of Public Health’s (Department) approval of Real Party in Interest Harm Reduction Coalition of Santa Cruz County’s (real party) needle exchange program.  Grant Park Neighborhood Association Advocates v. Department of Public Health, et al. (2023) 94 Cal.App.5th 478.  In ordering a writ to issue to set aside the approval, the Court of Appeal agreed with petitioner and appellant Grant Park’s first three arguments based on the Department’s prejudicial violations of Health and Safety Code § 121349’s required procedures; it declined to reach appellant’s separate CEQA argument seeking the same relief, however, since it had already granted all requested relief under the other statutory provisions.  However – and as most relevant to this blog – the Court also noted that following the trial court’s judgment the Legislature enacted a 2021 statutory amendment exempting the Department’s approval of needle exchange operations from CEQA.Continue Reading Third District Declines To Reach CEQA Exemption Claim In Reversing On Other Grounds Judgment Upholding State Department of Public Health’s Approval of Santa Cruz County Needle Exchange Program But Notes New Statutory CEQA Exemption Now Exists

On July 7, 2023, following a request for publication made on behalf of the California Building Industry Association, the Building Industry Association of the Bay Area, and the California Business Properties Association, the Fourth District Court of Appeal ordered published its decision originally filed on June 8, 2023, affirming the trial court’s judgment upholding a Newport Beach multifamily project approval against various CEQA challenges.  Olen Properties Corp. v. City of Newport Beach (2023) 93 Cal.App.5th 270.Continue Reading Fourth District Belatedly Publishes CEQA Opinion Upholding City of Newport Beach’s Approval of Multifamily-Housing Development Pursuant To Addendum To 2006 EIR For Larger Mixed-Use Development

On July 10, 2023, Governor Newsom signed into law a number of bills aimed at streamlining and accelerating the construction of critical infrastructure projects needed to achieve California’s ambitious climate and clean energy goals. Among the many bills was SB No. 149, CEQA legislation that amended Public Resources Code §§ 21167.6, 21181, 21183, 21189.1, and 21189.3; added Chapter 7 (commencing with § 21189.80); and became effective immediately as an urgency measure “[t]o promote environmental protection and safeguard economic development of California’s diverse public resources and people, and enhance the state’s ability to maximize federal funding to support those efforts[.]”  The full text of SB 149 can be found here.Continue Reading Governor Signs Infrastructure/Budget Legislation Including Significant Revisions To CEQA (SB 149)

In a published opinion filed June 7, 2023, the Fifth District Court of Appeal held the trial court erred in applying California’s interrelated factors test to deny a preliminary injunction in a CEQA case.  The error consisted of failing to consider harm to the public interests in informed decisionmaking and public disclosure as relevant informational harm to be weighed in evaluating the relative balance of harms likely to result from the erroneous granting or denial of the preliminary injunction.  Tulare Lake Canal Company v. Stratford Public Utility District (Sandridge Partners, L.P., et al, Real Parties in Interest) (2023) 92 Cal.App.5th 380. Accordingly, the Court of Appeal reversed the order denying the preliminary injunction and remanded the matter to the trial court for reconsideration, while keeping in effect its writ of supersedeas continuing the trial court’s TRO in full force and effect.Continue Reading Fifth District Holds Harm To Public Interest In Informed Decisionmaking Must Be Considered By Court In Deciding Whether To Grant Preliminary Injunction In CEQA Case

In a March 27, 2023 post found here, we wrote about the Second District Court of Appeal’s (Div. 1) decision concerning the Water Code section 13389 CEQA exemption for Regional Water Quality Control Board (“RWQCB”) issuance of waste discharge permits, formerly published as Los Angeles Waterkeeper v. State Water Resources Control Board (2023) 88 Cal.App.5th 874.  After the Regional Board and State Board filed a request for modification of that opinion to clarify certain issues, the Court of Appeal vacated it, ordered rehearing, considered supplemental briefing, and filed a new, superseding published opinion in the case on June 2, 2023.Continue Reading Second District “Waters Down” Los Angeles Waterkeeper Waste Discharge Permit CEQA Exemption Opinion After Rehearing At Request Of Water Boards, Narrows And Clarifies Holding With No Change In Judgment Or Result

In consolidated litigation challenging on CEQA and Coastal Act grounds the Coastal Commission’s amendment of a coastal development permit (CDP) to (among other new use restrictions) completely phase out off-highway vehicle (OHV) use at the apparently inaptly-named Oceano Dunes State Vehicular Recreation Area (Oceano Dunes), the Second District Court of Appeal (Div. 6) affirmed the trial court’s order denying a motion to intervene filed by a number of interested nonparties (the Northern Chumash Tribal Council, Oceano Beach Community Association, and Center for Biological Diversity, or “Appellants”). Friends of Oceano Dunes, et al. v. California Coastal Commission, et al. (2023) 90 Cal.App.5th 836. In so doing, the Court applied and explained numerous principles governing both motions for intervention as of right and motions for permissive intervention.Continue Reading No Room At the Table:  Second District Upholds Denial of Intervention in CEQA/Coastal Act Litigation Where Nonparties Failed to Make “Compelling Showing of Inadequate Representation”.

In a published opinion filed April 14, 2023, the First District Court of Appeal (Div. 3) taught some interesting procedural lessons in a CEQA/writ of mandate case arising from the City of San Francisco’s denial of a single-family home renovation project proposed by one Durkin and his LLC (Appellants) that was successfully challenged in the City’s administrative proceedings by a neighboring owner (Kaufman).  Christopher Durkin v. City and County of San Francisco, et al. (Philip Kaufman, Real Party in Interest) (2023) 90 Cal.App.5th 643.Continue Reading Slapping Down An Anti-SLAPP: First District Holds Next-Door Neighbor Opponents Of Residential Renovation Project And Related CEQA Compliance In City’s Administrative Proceedings Were Properly Named As Real Parties In Interest In Project Proponent’s Subsequent Mandate Action Challenging City’s Project Denial