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At its weekly conference held on August 24, 2022, the California Supreme Court acted to modify its recent majority opinion in County of Butte v. Department of Water Resources (State Water Contractors) (2022) ___ Cal.5th ___, Case No. S258574.  In granting the request, made in a letter signed by a number of leading CEQA practitioners, for modification to correct an erroneous statement in its opinion about required topics of EIR discussion (see my 8/19/22 post on counsel’s letter here), the Supreme Court issued an “Order Modifying Opinion” stating:
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Continue Reading Supreme Court Corrects Butte County Opinion’s CEQA Misstatement In Response To Counsel’s Letter

An August 12, 2022 letter to the Supreme Court – signed onto by more than a dozen leading CEQA attorneys not representing parties to the action or other clients – has requested the Court to modify its August 1, 2022 majority opinion in County of Butte v. Dept. of Water Resources, Supreme Court Case No. S258574 to correct an error in one of the opinion’s background statements concerning a basic principle of CEQA law.  (The error was pointed out in my August 7, 2022 post on the case, which can be found here.)
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Continue Reading Leading CEQA Counsel File Letter Requesting California Supreme Court To Correct Basic Error In Recent Majority Opinion

On June 1, 2022, the Sixth District Court of Appeal, in response to a request for publication, ordered that its previously unpublished May 9, 2022 opinion in Committee for Sound Water and Land Development v. City of Seaside (KB Bakewell Seaside Venture II, LLC, Real Party in Interest) (2022) ___ Cal.App.5th ___ be published.  Matt Henderson’s and my May 20, 2022 post discussing and analyzing the Court’s decision, which is now precedent and can be cited as such, can be found here.
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Continue Reading Sixth District Belatedly Orders Published Its Opinion Upholding Constitutionality Of Judicial Council’s Emergency Rule Altering CEQA’s Statutes Of Limitations

On May 25, 2022, the League of California Cities (“League”) and California State Association of Counties (“CSAC”) filed a 10-page letter with the California Supreme Court requesting it to depublish the First District Court of Appeal’s recent decision in Save the Hill Group v. City of Livermore, Case No. A161573 (my April 4, 2022 post on which can be found here).
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Continue Reading League of California Cities and CSAC File Request for Depublication of First District Decision Addressing Sufficiency of CEQA-Mandated “No Project” Alternative In Housing Project EIR

On May 12, 2022, the First District Court of Appeal filed a 108-page published opinion affirming a judgment denying a CEQA writ petition that challenged Marin County’s approval of a 43-lot single-family residential subdivision on a 110-acre parcel atop a mountain overlooking the Town of Tiburon and San Francisco Bay.  Tiburon Open Space Committee v. County of Marin (The Martha Company, Real Party in Interest, and Town of Tiburon, Intervenor and Appellant) (2022) ___ Cal.App.5th ___.  Apart from its factual background of nearly a half-century of intense legal battles over (and effectively blocking) the property’s development – which the Court described as “this woeful record before us” – the decision is notable for its legal analysis of how CEQA applies when a lead agency’s discretion in considering a project for approval is constrained by legal obligations.  While in this case the legal obligations stemmed from stipulated federal court judgments mandating that the County approve a minimum level of development on the property, the Court’s reasoning and holdings that the scope of CEQA adjusts and is limited commensurate with legal limitations on an agency’s discretionary authority will clearly apply to other contexts.  Most obviously, and topically, they plainly will apply to housing development projects when state housing laws impose legal obligations that limit local agencies’ legal authority to disapprove or reduce the density of those projects.  (See, e.g., Gov. Code, § 65589.5 (the “Housing Accountability Act”).)
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Continue Reading “This Woeful Record”: First District Affirms Judgment Rejecting CEQA Challenges To Marin County’s Approval of 43-Home Mountaintop Subdivision Opposed For Nearly Five Decades By Neighbors And Town of Tiburon

As the world continues to dig out from the aftermath of the Covid 19 pandemic, the aftereffects of the earliest phase of lockdowns continue to be felt, including in the world of CEQA litigation.  While this blog does not ordinarily focus on unpublished appellate decisions, the recent case of Committee for Sound Water and Land Development v. City of Seaside, H049031 (6th Dist., May 9, 2022) is worth a look given its analysis of CEQA’s statute of limitations and its extension by emergency actions of the Judicial Council, as well as its handling of the tricky scenario of what happens when an approving agency is dissolved by operation of law.
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Continue Reading Sixth District Upholds Constitutionality of Judicial Council’s Covid Emergency Rules Altering CEQA’s Statutes of Limitations In Unpublished Opinion

In a published opinion filed November 4, 2021, the Second Appellate District (Div. 8) affirmed the Los Angeles County Superior Court’s order denying International Longshore and Warehouse Union Locals 13, 63, and 94’s (“Union”) motion for permissive intervention in complex CEQA litigation involving the China Shipping Container Terminal (“Terminal”) in the Port of Los Angeles.  South Coast Air Quality Management District v. City of Los Angeles, et al (China Shipping (North America) Holding Co., Ltd., et al, Real Parties in Interest) (2021) 71 Cal.App.5th 314.
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Continue Reading “Let’s Not Complicate Things”: Second District Holds Trial Court Properly Exercised Its Discretion In Denying Union’s Permissive Intervention Motion In Complex Los Angeles Port CEQA Litigation

On November 18, 2021, the publishers of the California Land Use Law & Policy Reporter and sponsoring law firms (including Miller Starr Regalia) will present, in an online format, the Seventh Annual California Land Use Law Policy Conference.  The one-day program will cover numerous topics including recent housing legislation, environmental justice, tribal consultation, the Surplus Land Act, and, of course, a number of CEQA-related issues and topics. I’ll be speaking on recent themes in the CEQA case law.  More details on program content, faculty and registration can be found here.  Hope you can join!
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Continue Reading Miller Starr Regalia To Present Online On CEQA Developments At Upcoming Seventh Annual California Land Use Law & Policy Conference

In a 53-page published opinion filed October 8, 2021, the Fourth District Court of Appeal mostly affirmed, but reversed in part, a judgment in a CEQA action challenging two sets of projects of the City of San Diego to underground overhead utility wires in several neighborhoods.  McCann v. City of San Diego (2021) 70 Cal.App.5th 51.  The opinion addressed and resolved a number of significant and interesting CEQA claims and issues involving the exhaustion doctrine; procedures for administratively appealing CEQA exemption determinations (and related due process notice issues); piecemealing; project description; aesthetics; and proper methodology for determining the significance of GHG emissions impacts through assessing a project’s consistency with a local Climate Action Plan (CAP).
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Continue Reading Fourth District Addresses Numerous Significant CEQA Issues In Action Challenging City of San Diego’s Utility Undergrounding Projects